THE NATIONAL EDITION
This edition is strictly limited to seventeen hundred
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CURRENT LITERATURE PUBLISHING COMPANY
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GREAT DEBATES IN
AMERICAN HISTORY
From the Debates in the British Parliament on the
Colonial Stamp Act (1764-1765} to the Debates
in Congress at the Close of the Taft
Administration (1912-1913)
EDITED BY
MARION MILLS MILLER, LITT.D. (PRINCETON)
Editor of "The Life and Works of Abraham Lincoln," etc.
IN FOURTEEN VOLUMES
EACH DEALING WITH A SPECIFIC SUBJECT, AND CONTAINING A SPECIAL INTRODUC
TION BY A DISTINGUISHED AMERICAN STATESMAN OR PUBLICIST
VOLUME SEVEN
CIVIL RIGHTS: PART ONE
With an Introduction by WOODROW WILSON, LL.D.
President of the United States
CURRENT LITERATURE PUBLISHING COMPANY
NEW YORK
COPYRIGHT, 1913, BY
CURRENT LITERATURE PUBLISHING COMPANY
Press of J. J. Little & Ives Co., New York
CONTENTS OF VOLUME SEVEN
PAGE
INTRODUCTION: The Constitutional Results of Reconstruction . 1
By WOODROW WILSON
CHAPTER
I. NATURALIZATION 9
Debate in the House : in favor of stringent requirements,
THEODORE SEDGWICK (Mass.), WILLIAM VANS MURRAY
(Md.) ; opposed, JOHN PAGE (Va.), JAMES MADISON (Va.),
JOHN NICHOLAS (Va.), SAMUEL DEXTER (Mass.), ABRAHAM
BALDWIN (Ga.) ; in favor of renunciation of titles of no
bility, WILLIAM B. GILES (Va.), Mr. MADISON, Mr. PAGE;
opposed, WILLIAM L. SMITH (S. C.), Mr. DEXTER, RICHARD
BLAND LEE (Va.), FISHER AMES (Mass.); in favor of ten
years' residence, SAMUEL SMITH (Md.) ; in favor of five,
Mr. BALDWIN, THOMAS FITZSIMONS (Pa.).
II. THE ALIEN LAWS 20
Debate in the House on granting the President power to deport
aliens who are natives of countries at war with the United
States: in favor, JOHN RUTLEDGE, JR. (S. C.), JOHN AL
LEN (Ky.), SAMUEL SEWALL (Mass.); opposed, JOSEPH
MCDOWELL (N. C.), ALBERT GALLATIN (Pa.).
Debate in the House on punishing harborers of aliens: in
favor, Mr. SEWALL, NATHANIEL SMITH (Conn.), HARRISON
GRAY OTIS (Mass.) ; opposed, JAMES A. BAYARD, SR. (Del.),
Mr. GALLATIN, ROBERT WILLIAMS (N. C.).
Debate in the House on granting the President power to ban
ish aliens whom he deems suspicious persons: in favor, Mr.
OTIS, ROBERT G. HARPER (S. C.), JONATHAN DAYTON (N.
J.) ; opposed, Mr. GALLATIN, Mr. WILLIAMS, EDWARD LIV
INGSTON (N. Y.).
III. THE SEDITION LAW 56
Debate in the House: in favor, JOHN ALLEN (Ky.), ROBERT
G. HARPER (S. C.), HARRISON GRAY OTIS (Mass.), SAMUEL
W. DANA (Conn.); opposed, JOHN NICHOLAS (Va.), EDWARD
LIVINGSTON (N. Y.), NATHANIEL MACON (N. C.), JOSEPH
MCDOWELL (N. C.), ALBERT GALLATIN (Pa.).
IV. THE KENTUCKY AND VIRGINIA RESOLUTIONS (in
favor of State Eights and against the Alien and Sedition
Laws} 89
Text of the Kentucky Resolutions (endorsed by THOMAS JEF
FERSON).
iii
284648
iv GREAT AMERICAN DEBATES
CHAPTER PAGE
Debate on the Virginia Resolutions (drafted by JAMES MADI
SON) in the Virginia Assembly: in favor, JOHN TAYLOR,
et al; opposed, GEORGE K. TAYLOR, Mr. BROOKE, General
HENRY LEE.
Eeplies of the other States to the Kentucky and Virginia
Resolutions.
MADISON'S Report on the Virginia Resolutions.
MADISON'S argument against the Common-Law Jurisdiction
of the Federal Courts; reply to it by Associate- Justice
JOSEPH STORY.
First Inaugural of THOMAS JEFFERSON: "The Road to Lib
erty."
V. PROTECTION OF ADOPTED CITIZENS (The Koszta Af
fair) 118
Diplomatic controversy between Baron HULSEMANN (Austria)
and Secretary of State WILLIAM L. MARCY.
Debate in the House on resolutions of thanks to Capt. Duncan
L. Ingraham (Koszta 's savior) : JOHN PERKINS, JR. (La.)
on the Rights of Expatriation; Tilt between GILBERT DEAN
(N. Y.) and JOHN S. MILLSON (Va.) on the duty vs. the
right to protect Koszta; DAVID T. DISNEY (O.) on the dis
tinction between Domiciliation and Allegiance.
VI. NATIVISM (The "Know -Nothing" Movement) . . .133
Debate in the House: in favor, NATHANIEL P. BANKS (Mass.),
opposed, WILLIAM S. BARRY (Miss.).
VII. AID TO FREEDMEN (The Freedmen's Bureau) . . . 167
Debate in the House: in favor, THOMAS D. ELIOT (Mass.),
General ROBERT C. SCHENCK (O.), WILLIAM D. KELLEY
(Pa.); opposed, FRANCIS D. KERNAN (N. Y.).
Debate in the Senate: in favor, CHARLES SUMNER (Mass.);
opposed, GARRETT DAVIS (Ky.) ; opposed to certain features,
THOMAS A. HENDRICKS (Ind.), JAMES W. GRIMES (la.),
SAMUEL C. POMEROY (Kan.), WILLIAM SPRAGUE (R. L),
JOHN B. HENDERSON. (Mo.), HENRY S. LANE (Ind.), JOHN
P. HALE (N. H.)
Speech of Representative IGNATIUS DONNELLY (Minn.) on
"Education and Citizenship."
VIII. SUSPENDED SOVEREIGNTY OR STATE SUICIDE? (Re
construction of Rebellious States) 198
Message and Proclamation of President LINCOLN on Amnesty
and Reconstruction.
Debate in the House on Reconstruction: in favor, HENRY WIN
TER DAVIS (Md.), FERNANDO C. BEAMAN (Mich.), NATHANIEL
B. SMITHERS (Del.), THOMAS WILLIAMS (Pa.), M. RUS
SELL THAYER (Pa.), IGNATIUS DONNELLY (Minn.), THAD-
DEUS STEVENS (Pa.), SIDNEY PERHAM (Me.), JAMES M.
ASHLEY (O.), DANIEL W. GOOCH (Mass.) WILLIAM D. KEL
LEY (Pa.), GEORGE S. BOUTWELL (Mass.); opposed, JAMES
C. ALLEN (111.), CHARLES DENISON (Pa.), MYER STROUSE
CONTENTS OF VOLUME SEVEN v
CHAPTER PAGE)
(Pa.), JAMES A. CRAVENS (Ind.), FRANCIS D. KERNAN (N.
Y.), GEORGE H. PENDLETON (O.).
Speech of President LINCOLN on Reconstruction of Seceded
States : "At Home Again in the Union. ' '
IX. RECONSTEUCTION BY EXECUTIVE AUTHORITY . . 269
President ANDREW JOHNSON on the Punishment of Treason:
his proclamation of Amnesty and Pardon.
Reports of Generals CARL SCHURZ and ULYSSES S. GRANT on
Political Conditions in the South.
Inaugural Speech of Speaker SCHUYLER COLFAX (Ind.) on
"Safeguarding Civil Rights. "
Message of President JOHNSON on Reconstruction of States
and Protection of Freedmen: opposed to the President's
policy, Representative JOHN W. FARNSWORTH (111.)-
Debate in the Senate on investigating political conditions in
the South: in favor, JACOB M. HOWARD (Mich.), WILLIAM
P. FESSENDEN (Me.) ; opposed, JAMES R. DOOLITTLE (Wis.),
WILLARD SAULSBURY (Del.), JAMES GUTHRIE (Ky.).
Debate in the Senate on nullifying State laws discriminating
against the civil rights of negroes: in favor, HENRY WILSON
(Mass.), CHARLES SUMNER (Mass.); opposed, REVERDY
JOHNSON (Md.), Senator SAULSBURY, EDGAR COWAN (Pa.).
X. RECONSTRUCTION BY CONGRESSIONAL AUTHORITY . 311
Debate in the House : in favor of Executive Reconstruction :
WILLIAM E. FINCK (O.), HENRY J. RAYMOND (N. Y.),
GEORGE R. LATHAM (W. Va.), DANIEL E. VOORHEES (Ind.);
in favor of Congressional Reconstruction, THADDEUS STEV
ENS (Pa.), WILLIAM D. KELLEY (Pa.), WILLIAM E. NIBLACK
(Ind.), JOHN W. FARNSWORTH (Ul.)> THOMAS A. JENCKES
(R. I.), JOHN A. BINGHAM (O.), Gen. ROBERT C. SCHENCK
(O.), RUFUS P. SPALDING (O.), SAMUEL SHELLABARGER
(O.), HENRY C. DEMING (O.).
XI. THE FIRST CIVIL RIGHTS BILL
Debate in the Senate: varying views by LYMAN TRUMBULL
(111.), PETER G. VAN WINKLE (W. Va.), WILLARD SAULS-
BURY (Del.), JAMES GUTHRIE (Ky.), EDGAR COWAN (Pa.),
JAMES H. LANE (Kan.), JACOB M. HOWARD (Mich.), REV
ERDY JOHNSON (Md.), CHARLES SUMNER (Mass.), THOMAS
A. HENDRICKS (Ind.), GARRETT DAVIS (Ky.), DANIEL CLARK
(N. H.), WILLIAM M. STEWART (Nev.), LOT M. MORRILL
(Me.), JOHN B. HENDERSON (Mo.), JAMES R. DOOLITTLE
(Wis.), HENRY S. LANE (Ind.).
Debate in the House: varying views by JAMES F. WILSON
(la.), ANDREW J. ROGERS (N. J.), M. RUSSELL THAYER
(Pa.), CHARLES A. ELDRIDGE (Wis.), JOHN A. BINGHAM
(O.), HENRY J. RAYMOND (N. Y.).
XII. THE FOURTEENTH AMENDMENT (Equality of Civil
Eights 412
Debate in the House: varying views by THADDEUS STEVENS
(Pa.), JAMES G. BLAINE (Me.), WILLIAM E. FINCK (O.),
vi GREAT AMERICAN DEBATES
CHAPTER PAGE
General JAMES A. GARFIELD (O.), BENJAMIN M. BOYER
(Pa.), WILLIAM D. KELLEY (Pa.), ANDREW J. ROGERS
(N. J.), General EGBERT C. SCHENCK (O.), GREEN CLAY
SMITH (Ky.), JOHN M. BROOMALL (Pa.), GEORGE S. SHANK-
LIN (Ky.), HENRY J. RAYMOND (N. Y.), GEORGE S. BOUT-
WELL (Mass.), SAMUEL J. RANDALL (Pa.), MYER STROUSE
(Pa.), General NATHANIEL P. BANKS (Mass.), HENRY L.
DAWES (Mass.), JOHN A. BINGHAM (O.), M. RUSSELL
THAYER (Pa.).
Debate in the Senate: varying views by THOMAS A. HEN-
DRICKS (Ind.) and JACOB M. HOWARD (Mich.).
President JOHNSON on the Read mission of Tennessee into the
Union: " Ratifying an Anomaly."
. RATIFICATION OF THE FOURTEENTH AMENDMENT
(Controversy between Conservatives and Radicals) . . 449
Resolutions of Senator EDGAR COWAN (Pa.) and speech of
Representative HENRY J. RAYMOND at " Harmony" Conven
tion (Administration).
Speech of JAMES SPEED (Ky.) and JOHN A. J. CRESWELL
(Md.) at "Southern Loyalist" Convention (Radical).
Speech of Greneral JOHN E. WOOL at Soldiers' Convention
(Administration) .
Speech of General JACOB D. Cox (O.) at Citizen Soldiers' and
Sailors' Convention (Radical).
"Swinging Round the Circle" (Speeches of President JOHN
SON).
ILLUSTRATIONS IN VOLUME SEVEN
PAGH
James Madison . . . Frontispiece
Photogravure
Congressional Pugilists ....... 59
"The Era of Bad Feelings" (1798)
Albert Gallatin 78
Photogravure
Executive Ma[e]rcy and the Bambers .... 121
[Surrender of Irishmen to the British Consul]
The American River Ganges ...... 135
Cartoon by Thomas Nast
The Unseen Signal of the Jesuits 162
The Rail-splitter [Lincoln] and Tailor [Johnson] Repair
ing the Union 199
The Nation Mourning at Lincoln's Bier .... 267
By Tenniel in London Punch
"The End Cometh" 271
[Capture of Jefferson Davis]
"My Policy" [Seward's] in 1868— and the Dead Duck
Still Lives 274
"Peace!" 298
Cartoon by Thomas Nast
Thaddeus Stevens .302
Photogravure
The Old Nurse [Sumner] and Her Foundling [The Civil
Rights Bill] 307
The Great Reconstruction Ball 313
[Those Who Get It Up and Those Who Invite Themselves
to It]
The Hour of Martyrdom Has Come [Passage of Civil
Rights Bill] . .405
Cartoon by Thomas Nast
The Veto Gal(l)op . . - 407
Cover design of a musical composition by "Make Peace "
"Not According to the Constitution" 453
vii
INTRODUCTION
THE CONSTITUTIONAL RESULTS OF EECONSTKUCTION *
THE first practical result of reconstruction under
the acts of 1867 was the enfranchisement, for
several weary years, of the better whites, and the
consequent giving over of the Southern governments
into the hands of the negroes. And yet not into their
hands, after all. They were but children still; and un
scrupulous men, ' ' carpetbaggers, ' ' — men not come to be
citizens, but come upon an expedition of profit, come to
make the name of Eepublican forever hateful in the South
— came out of the North to use the negroes as tools for
their own selfish ends; and succeeded to the utmost ful
fillment of their dreams. Negro majorities for a little
while filled the Southern legislatures, but they won no
power or profit for themselves beyond a pittance here and
there for a bribe. Their leaders, strangers and adven
turers, got the lucrative offices, the handling of the State
moneys raised by loan, and of the taxes spent no one
knew how. Here and there an able and upright man
cleansed administration, checked corruption, served them
as a real friend and an honest leader; but not for long.
The negroes were exalted; the States were misgoverned
and looted in their name; and a few men, not of their
number, not really of their interest, went away with the
1 Adapted from an article on "The Eeconstruction of the Southern
States," in the Atlantic Monthly, January, 1901.
VII— 1 1
2 GREAT AMERICAN DEBATES
gains. They were left to carry the discredit and reap
the consequences of ruin when at last the whites who
were real citizens got control again.
But we are here less concerned with that dark chap
ter of history than with the far-reaching constitutional
and political influences and results of reconstruction.
That it was a revolutionary process is written upon its
face throughout; but how deep did the revolution go?
What permanent marks has it left upon the great struc
ture of government, federal, republican, a partnership
of equal States and yet a solidly coherent national power
which the Fathers erected?
First of all, it is clear to everyone who looks straight
upon the facts, every veil of theory withdrawn and the
naked body of affairs uncovered to meet the direct ques
tion of the eye, that civil war discovered the foundations
of our government to be in fact unwritten, set deep in
a sentiment which constitutions can neither originate
nor limit. The law of the Constitution reigned until war
came. Then the stage was cleared and the forces of a
mighty sentiment, hitherto unorganized, deployed upon
it. A thing had happened for which the Constitution had
made no provision. In the Constitution were written the
rules by which the associated States should live in con
cert and union, with no word added touching days of
discord or disruption; nothing about the use of force to
keep or to break the authority ordained in its quiet sen
tences, written, it would seem, for lawyers, not for sol
diers. When the war came, therefore, and questions
were broached to which it gave no answer, the ultimate
foundation of the structure was laid bare : physical force,
sustained by the stern loves and rooted predilections of
masses of men, the strong ingrained prejudices which
are the fiber of every system of government. What gave
the war its passion, its hot energy as of a tragedy from
end to end, was that in it sentiment met sentiment, con
viction conviction. It was the sentiment, not of all, but
of the efficient majority, the conviction of the major part,
that won. A minority, eager and absolute in another con
viction, devoted to the utmost pitch of self-sacrifice to
an opposite and incompatible ideal, was crushed and
INTRODUCTION 3
overwhelmed. It was that which gave an epic breadth
and majesty to the awful clash between bodies of men
who were in all things else of one strain and breeding ; it
was that which brought the bitterness of death upon the
side which lost, and the dangerous intoxication of an ab
solute triumph upon the side which won. But it unmis
takably uncovered the foundations of force upon which
the Union rested.
It did more. The sentiment of union and nationality,
never before aroused to full consciousness or knowledge
of its own thought and aspirations, was henceforth a
new thing, aggressive and aware of a sort of conquest.
It had seen its legions and felt its might in the field. It
saw the very Constitution, for whose maintenance and
defence it had acquired the discipline of arms, itself sub
ordinated for a time to the practical emergencies of war,
in order that the triumph might be the more unimpeded
and complete ; and it naturally deemed nationality hence
forth a thing above law. As much as possible — so far as
could be without serious embarrassment — the forms of
the fundamental law had indeed been respected and ob
served; but wherever the law clogged or did not suffice,
it had been laid aside and ignored. It was so much the
easier, therefore, to heed its restrictions lightly when the
war was over and it became necessary to force the
Southern States to accept the new model. The real revo
lution was not so much in the form as in the spirit of
affairs. The spirit and temper and method of a Federal
Union had given place, now that all the spaces of the
air had been swept and changed by the merciless winds
of war, to a spirit which was consciously national and
of a new age.
It was this spirit which brushed theories and techni
calities aside and impressed its touch of revolution on
the law itself. And not only upon the law, but also upon
the processes of lawmaking and upon the relative
positions of the President and Congress in the gen
eral constitutional scheme of the government, seem
ing to change its very administrative structure. While
the war lasted the President had been master. The
war ended and Mr. Lincoln gone, Congress pushed its
4 GREAT AMERICAN DEBATES
way to the front and began to transmute fact into law,
law into fact. In some matters it treated all the States
alike. The Thirteenth, Fourteenth, and Fifteenth amend
ments bound all the States at once, North and West as
well as South. But that was, after all, a mere equality
of form. The amendments were aimed, of course, at the
States which had had slaves and had attempted seces
sion, and did not materially affect any others. The
votes which incorporated them in the Constitution were
voluntary on the part of the States whose institutions
they did not affect, involuntary on the part of the States
whose institutions they revolutionized. These States
were then under military rule. Congress had declared
their whole political organization to be illegal; had ex
cluded their representatives from their seats in the
Houses ; and yet demanded that they assent, as States, to
the amendment of the Constitution as a condition prece
dent to their reinstatement in the Union ! No anomaly
or contradiction of lawyers ' terms was suffered to stand
in the way of the supremacy of the lawmaking branch
of the general government. The Constitution knew no
such process as this of reconstruction, and could furnish
no rules for it. Two years and a half before the Fif
teenth Amendment was adopted by Congress, three
years and a half before it was put in force by its adop
tion by the States, Congress had by mere act forced the
Southern States, by the hands of military governors, to
put the negroes upon the roll of their voters. It had dic
tated to them a radical revision of their constitutions,
whose items should be framed to meet the views of the
Houses rather than the views of their own electors. It
had pulled about and rearranged what local institutions
it saw fit, and then had obliged the communities affected
to accept its alterations as the price of their reinstate
ment as self-governing bodies politic within the Union.
It may be that much, if not all, of this would have
been inevitable under any leadership, the temper of the
times and the posture of affairs being what they were;
and it is certain that it was inevitable under the actual
circumstances of leadership then existing at Washing
ton. But to assess that matter is to reckon with causes.
INTRODUCTION 5
For the moment we are concerned only with conse
quences, and are neither justifying nor condemning, but
only comprehending. The courts of the United States
have held that the Southern States never were out of the
Union; and yet they have justified the action of Con
gress throughout the process of reconstruction, on the
ground that it was no more than a proper performance
by Congress of a legal duty under the clause of the Con
stitution which guarantees to every State a republican
form of government. It was making the Southern gov
ernments republican by securing full standing and legis
lative representation as citizens for the negroes. But
Congress went beyond that. It not only dictated to the
States it was reconstructing what their suffrage should
be, it also required that they should never afterward
narrow that suffrage. It required of Virginia, Texas,
and Mississippi that they should accord to the negroes
not only the right to vote but also the right to hold po
litical office ; and that they should grant to all their citi
zens equal school privileges and never afterward abridge
them. So far as the right to vote was concerned, the
Fifteenth Amendment subsequently imposed the same
disability with regard to withholding the suffrage upon
all the States alike; but the Southern States were also
forbidden by mere Federal statute to restrict it on any
other ground; and in the cases of Virginia, Mississippi,
and Texas Congress assumed the right, which the Con
stitution nowhere accorded it, to regulate admission to
political office and the privileges of public education.
South Carolina and Mississippi, Louisiana and North
Carolina have since changed the basis of their suffrage,
notwithstanding; Virginia and Mississippi and Texas
might now, no doubt, reorganize their educational sys
tem as they pleased without endangering their status in
the Union or even meeting rebuke at the hands of the
Federal courts. The temper of the times has changed;
the Federal structure has settled to a normal balance of
parts and functions again ; and all the States are in fact
unfettered except by the terms of the Constitution itself.
It is marvelous what healing and oblivion peace has
wrought, how the traces of reconstruction have worn
6 GREAT AMERICAN DEBATES
away. But a certain deep effect abides. It is within, not
upon the surface. It is of the spirit, not of the body. A
revolution was carried through when war was done which
may be better comprehended if likened to England's sub
tle making over, that memorable year 1688. Though she
punctiliously kept to the forms of her law, England then
dismissed a king, almost as, in later years, she would have
dismissed a minister, though she preserved the procedure
of her constitution intact. She in fact gave a final touch
of change to its spirit. She struck irresponsible power
away and made her government once for all a consti
tutional government. The change had been insensibly
a -making for many a long age; but now it was accom
plished consciously and at a stroke. Her constitution,
finished, was not what it had been until this last stroke
was given — when silent forces had at last found sudden
voice, and the culminating change was deliberately made.
Nearly the same can be said of the effect of the war
and of the reconstruction of the Southern States upon
our own government. It was a revolution of conscious
ness — of mind and purpose. A government which had
been in its spirit federal became, almost of a sudden,
national in temper and point of view. The national
spirit had long been a-making. Many a silent force
which grew quite unobserved from generation to genera
tion in pervasiveness and might, in quiet times of whole
some peace and mere increase of nature, had been breed
ing these thoughts which now sprang so vividly into
consciousness. The very growth of the nation, the very
lapse of time and uninterrupted habit of united action,
the mere mixture and movement and distribution of pop
ulations, the mere accretions of policy, the mere consoli
dation of interests, had been building and strengthening
new tissue of nationality the years through, and drawing
links stronger than links of steel round about the invisible
body of common thought and purpose which is the sub
stance of nations. When the great crisis of secession
came, men knew at once how their spirits were ruled, men
of the South as well as men of the North — in what insti
tutions and conceptions of government their blood was
fixed to run; and a great and instant readjustment took
INTRODUCTION 7
place, which was for the South, the minority, practically
the readjustment of conquest and fundamental recon
struction, but which was for the North, the region which
had been transformed, nothing more than an awakening.
It cannot be said that the forms of the Constitution
were observed in this quick change as the forms of the
English constitution had been observed when the Stuarts
were finally shown the door. There were no forms for
such a business. For several years, therefore, Congress
was permitted to do by statute what, under the long-
practiced conceptions of our Federal law, could properly
be done only by constitutional amendment. The neces
sity for that gone by, it was suffered to embody what it
had already enacted and put into force as law into the
Constitution, not by the free will of the country at large,
but by the compulsions of mere force exercised upon a
minority whose assent was necessary to the formal com
pletion of its policy. The result restored, practically en
tire, the forms of the Constitution; but not before new
methods and irregular, the methods of majorities but
not the methods of law, had been openly learned and
practiced and learned in a way not likely to be forgot.
Changes of law in the end gave authentic body to many
of the most significant changes of thought which had
come, with its new consciousness, to the nation. A citizen
ship of the United States was created ; additional private
civil rights were taken within the jurisdiction of the
general Government; additional prohibitions were put
upon the States; the suffrage was in a measure made
subject to national regulation. But the real change was
the change of air — a change of conception with regard
to the power of Congress, the guiding and compulsive
efficacy of national legislation, the relation of the life
of the land to the supremacy of the national law-making
body. All policy thenceforth wore a different aspect.
We realize it now, in the presence of novel enter
prises, at the threshold of an unlooked-for future. It
is evident that empire is an affair of strong govern
ment and not of the nice and somewhat artificial poise
or of the delicate compromises of structure and authority
characteristic of a mere federal partnership. Undoubt-
8 GREAT AMERICAN DEBATES
edly the impulse of expansion is the natural and whole
some impulse which comes with a consciousness of ma
tured strength; but it is also a direct result of that
national spirit which the war between the States cried
so wide awake, and to which the process of reconstruc
tion gave the subtle assurance of practically unimpeded
sway and a free choice of means. The revolution lies
there, as natural as it was remarkable and full of
prophecy. It is this which makes the whole period of
reconstruction so peculiarly worthy of our study. Every
step of the policy, every feature of the time, which
wrought this subtle transformation, should receive our
careful scrutiny. We are now far enough removed from
the time to make that scrutiny both close and dispassion
ate. A new age gives it a new significance.
CHAPTER I
NATURALIZATION
Naturalization Law of 1790 — New Law of 1794; Debate On It in the
House: in Favor of Stringent Requirements, Theodore Sedgwick
[Mass.], William Vans Murray [Md.] ; Opposed, John Page [Va.],
James Madison [Va.], John Nicholas [Va.], Samuel Dexter [Mass.],
Abraham Baldwin [Ga.] : in Favor of Renunciation of Titles of
Nobility, William B. Giles [Va.], Mr. Madison, Mr. Page; Opposed,
William L. Smith [S. C.], Mr. Dexter, Richard Bland Lee [Va.], Fisher
Ames [Mass.], Mr. Murray: in Favor of Ten Years' Residence, Samuel
Smith [Md.] ; in Favor of Five Years, Mr. Baldwin, Thomas Fitz-
Bimons [Pa.].
THE chief problems after the assurance of the tri
umph of Union arms in the Civil War were the
civil rights of the negro and the reconstruction
of the governments of the seceded States in such a man
ner as to protect him in these rights. Before introduc
ing the debates on this question it will be necessary to
revert to earlier ones connected with the general subject
of citizenship and its special phases, such as Naturaliza
tion, Bights of Aliens, etc.
In 1790 the first Congress established a uniform rule
of naturalization, by which aliens, being free white per
sons who should have resided two years in the United
States, might be admitted as citizens thereof under cer
tain regulations and restrictions.
In his address at the opening of Congress, on No
vember 18, 1794, President Washington spoke of the
need of "affectionate vigilance " on the part of native
Americans "over that precious depository of American
happiness, the Constitution, " especially as an example
to "those who from every clime are daily seeking a
dwelling in our land."
This allusion was occasioned by the great influx of
9
10 GREAT AMERICAN DEBATES
immigrants from the war-racked countries of Europe.
Upon what terms to admit them became a pressing mat
ter with Congress, and early in the session a bill was
presented in the House of Kepresentatives to establish
a more stringent rule of naturalization than that of
1790. Its provisions were substantially those which
prevail to-day. It was debated off and on, from De
cember 22, 1784, until January 8, 1795, when it was
passed and sent to the Senate, where certain amend
ments were proposed, which were accepted by the House
on January 26, 1795. In the debate in the House gen
eral principles of citizenship were presented which are
of interest to-day, as well as certain principles applica
ble to the conditions of the time, which strikingly pre
sent the temper of our early statesmen. In the debate
on general principles John Page [Va.], James Madison
[Vt.], John Nicholas [Vt], Samuel Dexter [Mass.], and
Abraham Baldwin [Ga.] were opposed to stringent re
quirements in the way of oaths and attestations, and
Theodore Sedgwick [Mass.], and William Vans Murray
[Md.] in favor of them.
On the specific question of the renunciation of titles
to nobility William B. Giles [Va.], Mr. Madison, and Mr.
Page were in favor of renunciation, and William L.
Smith [S. C.], Mr. Dexter, Eichard Bland Lee [Va.],
Fisher Ames [Mass.], and Mr. Murray were opposed
to it.
Upon the question of duration of residence Samuel
Smith [Md.] advocated a term of ten years and Mr.
Baldwin and Thomas Fitzsimons [Pa.] a term of five
years.
ON NATURALIZATION
HOUSE OF REPRESENTATIVES, DECEMBER 22, 1794-JANUARY 8, 1795
MR. PAGE disliked the requirement of an oath of allegiance
by the applicant for citizenship. He trusted that a Constitution
much admired, and with such wholesome laws, will be an induce
ment to many good men to become citizens, and that, should
bad men come among us, they will be discountenanced by the
more virtuous class of citizens and, if necessary, be punished
NATURALIZATION 11
by the laws. He hoped that good schools would soon be spread
over all the States, and, hence, that good sense and virtue will
be so generally diffused among us that emigrants will be unable
to corrupt our manners. Even at present, he relied so much on
the virtue and discernment of his fellow citizens, the power
of the law, and the energy of Government as to apprehend no
danger from emigration in the United States.
MB. SEDQWICK. — America, if her political institutions should,
on experience, be found to be wisely adjusted, and she shall im
prove her natural advantages, had opened to her view a more
rich and glorious prospect than ever was presented to man.
She had chosen for herself a government which left to the
citizen as great a portion of freedom as was consistent with a
social compact. All believed the preservation of this govern
ment, in its purity, indispensable to the continuance of our
happiness. The foundation on which it rested was general
intelligence and public virtue ; in other words, wisdom to dis
cern, and patriotism to pursue, the general good. He had pride
in believing his countrymen more wise and virtuous than any
other people on earth; hence he believed them better qualified
to administer and support a Republican government. This char
acter of Americans was the result of early education, aided, in
deed, by the discipline of the Revolution. In that part of the
country with which he was best acquainted, the education, man
ners, habits, and institutions, religious and civil, were republi
can. The community was divided into corporations, in many
respects resembling independent republics, of which almost every
man, the qualifications were so small, was a member. They had
many important and interesting concerns to transact. They ap
pointed their executive officers, enacted by-laws, raised money
for many purposes of use and ornament. Here, then, the citizens
early acquired the habits of temperate discussion, patient reason
ing, and a capacity of enduring contradiction. Here the means
of education and instruction are instituted and maintained;
public libraries are purchased and read; these are the proper
schools for the education of republican citizens; thus are to be
planted the seeds of republicanism. If you will cultivate the
plants which are to be reared from these seeds you will gather
an abundant harvest of long-continued prosperity.
Much information might be obtained by the experience of
others if, in despite of it, we were not determined to be guided
only by a visionary theory. Behold the ancient republics of
Greece and Rome; see with what jealousy they guarded the
rights of citizenship against adulteration by foreign mixture.
12 GREAT AMERICAN DEBATES
The Swiss nation in modern times had not been less jealous on
the same subject. Indeed, no example could be found in the
history of man to authorize the experiment which had been
made by the United States. It seemed to have been adopted
by universal practice as a maxim that the republican character
was no way to be formed but by early education. In some in
stances, to form this character, those propensities which are
generally considered as almost irresistible, were opposed and
subdued. And shall we alone adopt the rash theory that the
subjects of all governments — despotic, monarchical, and aristo-
cratical — are, as soon as they set foot on American ground, qual
ified to participate in administering the sovereignty of our coun
try? Shall we hold the benefits of American citizenship so
cheap as to invite, nay, almost bribe, the discontented, the am
bitious, and the avaricious of every country to accept them?
It was said, in support of what was termed our liberal policy,
that our country wanted commercial capital; that we had an
immense tract of vacant territory; and that we ought not, with
the avarice of a miser, to engross to ourselves the exclusive en
joyment of our political treasures; but he had never been con
vinced that we ought to make so great a sacrifice of principle for
the rapid accumulation of commercial capital. He had never
been convinced that, by an improvement of our own resources,
it would not accumulate as fast as might be for the public bene
fit. We heard much of equality. Property was, in some sense,
power; and the possession of immense property generated dar
ing passions which scorned equality, and with impatience en
dured the restraints of equal laws. Property was undoubtedly
to be protected as the only sure encouragement of industry,
without which we should degenerate into savages. But he had
never been convinced that the anxiety with which we wished
an accumulation of capital, in the hands of individuals, was
founded on correct republican reflection. The ardent ambition
inspired by the possession of great wealth, and the power of
gratifying it which it conferred, had, in many instances, dis
turbed the public peace, and, in not a few, destroyed liberty.
The vacant lands, which some, with so much avidity, wished
to see in the occupation of foreigners, he considered as the best
capital stock of the future enjoyment of Americans; as an
antidote against the poison of luxury ; as the nursery of robust
and manly virtue; and as a preventive of a numerous class of
citizens becoming indigent and, therefore, dependent. When
ever the time should arrive (and may that period be very dis
tant) when there should no longer be presented to the poor a
NATURALIZATION 13
decent competence and independence, as the effect of industry
and economy (which would generally be the case when lands
were no longer to be obtained on their present easy and reason
able terms), then that description of men, now perhaps the
most happy and virtuous, would become miserable to themselves
and a burden to the community.
He considered America as in possession of a greater stock of
enjoyment than any other people on earth. That it was our
duty to husband it with care ; yet he could not altogether exclude
such virtuous individuals as might fly here, as to an asylum,
against oppression. On the one hand, he would not dissipate
our treasures with the thoughtless profusion of a prodigal; nor
would he, on the other, hoard them, as in the unfeeling grasp of
a miser. Our glorious fabric has been cemented by the richest
blood of our country, and may it long continue to shelter us
against the blasts of poverty, of anarchy, and of tyranny.
ME. MADISON, like Mr. Page, was opposed to the requirement
of the oath of allegiance. It was hard to make a man swear
that he preferred the Constitution of the United States, or to
give any general opinion, because he may, in his own private
judgment, think monarchy or aristocracy better, and yet be
honestly determined to support this Government as he finds it.
MR. NICHOLAS opposed the word "moral" in an amendment
requiring that the applicant for citizenship furnish attestations
of his "good moral character." This word might be hereafter
implied to mean something relative to religious opinions.
MR. SEDGWICK remarked that the word ' l moral ' ' is opposed to
"immoral" and has no particular reference whatever to religion,
or whether a man believes anything or nothing. It has no refer
ence to religious opinions. We can everywhere tell, by the
common voice of the world, whether a man is moral or not in
his life without difficulty. In some States of the Union adultery
is not punishable by law, yet it is everywhere said to be an
immoral action.
Mr. Madison spoke on the resolution that if an
American citizen chose to expatriate himself he should
not be allowed to enter into the list of citizens again
without a special act of Congress and of the State from
which he had gone.
He said that he did not think that Congress, by the Consti
tution, had any authority to readmit American citizens at all.
It was granted to them to admit only aliens.
14 GREAT AMERICAN DEBATES
MB. DEXTER held that a man cannot expatriate himself
without the express consent of the nation of which he is a sub
ject.
MB. MURRAY would infer that this country had a right to
naturalize foreigners, because she has naturalized them ; and that
this country, by its laws, having accepted the allegiance of an
alien, the alien had a right to offer that allegiance. The very
proviso to naturalize an alien, without inquiry as to the consent
of his own country having been previously obtained, seems to
be predicated on the principle for which he contended — that a
man has the right to expatriate himself without leave obtained :
if he has not, all our laws of this sort, by which we convert an
alien into a citizen completely, must be acknowledged to be a
violation of the rights of nations. How far a man, after having
been naturalized at a period of life when his reason enabled
him to choose, and to enter into a solemn obligation, and, after
he has expressly entered into it, has a right, without the consent
of the society, to quit that society, might be another question.
After a citizen throws off his allegiance to this country, by leav
ing it and entering into a new obligation to some other nation,
though he may have a right so to do, he has no right to return
to his allegiance here without the consent of this society; and
it is not a question of right, but of policy, how far we will
readmit him to citizenship. It was, however, necessary that a
man, casting off the allegiance of one country, must complete
the act of dissolution in another. Therefore he considered that
law of Virginia a strange solecism which provides for the throw
ing off allegiance within the community. The consequences of
such a principle are not only destructive to the very form and
body of civil society, but are unnatural. They present a civilized
being belonging to no civil society on earth; for, in the inter
mediate state in which he stands, between the allegiance and
country he has just disowned, and the allegiance and country
to which he may intend to pledge himself, he is in the imaginary
state of nature, which is, in reality, an unnatural state, for a
being whose every faculty and quality constitute him a moral
agent, surrounded by essential relations, and, of course, impel
him to discharge duties of a social nature.
The British Government, by a want of conformity between
their first principle, as laid down in their law books, and the
practice of Parliament, have shown us a singular mixture of old
principles which the nation has outgrown. It is a maxim with
them that allegiance cannot be dissolved by any change of time
or place, nor by the oath of a subject to any foreign power ; yet
NATURALIZATION 15
they naturalize by act of Parliament. They accept what they
declare, by their theory of civil law, cannot be rightfully offered :
nay, for one century the throne of England has presented mon-
archs who were foreigners. William of Orange was a Prince,
but he was a subject, too, of a foreign power; and George the
First was a member of the Germanic body. There is little
danger that citizens, who are worthy of being so, will throw
off their allegiance from the United States. The amendment
which prohibits their readmission to a participation of all the
rights of citizenship will be a sufficient penalty, if any be neces
sary. Though they may have a right to expatriate themselves,
there cannot be inferred a right of returning; for every body
politic must have the right of saying upon what terms they
will accept any addition of aliens to their numbers; and the
expatriated man, no longer belonging to this society, and being
an alien, the Government may choose whether he ever shall en
joy its privileges again.
MR. BALDWIN expressed the strongest disapprobation at the
idea of expatriating all those of our citizens who may have
become subjects or citizens of another country. Many of them
had been made citizens without any solicitation of their own
and merely as a mark of esteem from the government under
which they lived. They had no design whatever of renouncing
their country. Yet the House of Representatives, all at once,
declares them incapable of returning to their former situa
tion.
MR. GILES proposed a new clause which was, in substance,
that all such aliens who had borne any hereditary titles, or
titles of nobility in other countries, should make a renunciation
of such titles before they can enjoy any right of citizenship. Mr.
G. said if we did anything to prevent an improper mixture of
foreigners with the Americans this measure seemed to him one
that might be useful.
MR. W. SMITH was entirely opposed to the motion. The
mind of the public is completely guarded against the introduc
tion of titles and they will never be current here. You cannot
hinder a man from calling another a viscount. You cannot de
clare this a crime.
He doubted whether the House had, by the Constitution, any
right of making such a law. They were directed not to grant
any titles, but their authority did not extend to the taking away
of titles from persons who were not born in the country. The
Marquis de Lafayette has been distinguished all over the Conti
nent by the title of Marquis. Mr. S. hoped that he would one
16 GREAT AMERICAN DEBATES
day be again in America and then he would very likely be called
Marquis again. By this law it would be illegal.
Why might there not be an interdiction against persons con
nected with the Jacobin Club ? Why not forbid the wearing of
certain badges of distinction used by Jacobins?
MR. MADISON approved of the motion. He regarded it as
exactly to the business in hand, to exclude all persons from citi
zenship who would not renounce forever their connection with
titles of nobility. The propriety of the thing would be illus
trated by this reflection: that, if any titled orders had existed
in America before the Revolution, they would infallibly have
been abolished by it.
We have been reminded of the Marquis de Lafayette. He
had the greatest respect for that character; but, if he were to
come to this country, this very gentleman would be the first to
recommend and acquiesce in the amendment on the table. He
had urged the necessity of utterly abolishing nobility in France,
even at a time when he thought it necessary for the safety of
the state that the King should possess a considerable portion of
power.
MR. GILES declared that the requirement was in conformity
with the Constitution, which declared no titled character admis
sible to any civil rank. The measure is a proper safeguard.
A revolution is now going onward to which there is nothing
similar in history. A large portion of Europe has already de
clared against titles, and when the innovations are to stop no
man can presume to guess. There is at present no law in the
United States by which a foreigner can be hindered from voting
at elections, or even from coming into this House; and, if a great
number of these fugitive nobility come over, they may soon ac
quire considerable influence. The tone of thinking may in
sensibly change in the course of a few years and no person can
say how far such a matter may spread.
MR. DEXTER opposed the resolution. He imagined that, by
the same mode of reasoning, we might hinder His Holiness the
Pope from coming into this country. And why not? priestcraft
had done more mischief than aristocracy.
MR. MADISON said that the question was not perhaps so im
portant as some gentlemen supposed; nor of so little conse
quence as others seemed to think it. It is very probable that the
spirit of republicanism will pervade a great part of Europe.
It is hard to guess what numbers of titled characters may, by
such an event, be thrown out of that part of the world. What
can be more reasonable than that, when crowds of them come
NATURALIZATION 17
here, they should be forced to renounce everything contrary to
the spirit of the Constitution?
MR. PAGE was for the motion. It did not become that House
to be afraid of introducing democratical principles. Titles only
give a particular class of men a right to be insolent, and another
class a pretence to be mean and cringing. The principle will
come in by degrees and produce mischievous effects here as well
as elsewhere. If such men do come here, nothing can be more
grateful to a republican than to see them renounce their titles.
This does not amount to any demand of making them renounce
their principles. If they do not aspire to be citizens they may
assume as many titles as they think fit. Equality is the basis
of good order and society, whereas titles turn everything wrong.
Mr. P. said that a scavenger was as necessary to the health of
a city as any one of its magistrates. It was proper, therefore,
not to lose sight of equality and to prevent, as far as possible,
any opportunities of being insolent. He did not want to see a
duke come here and contest an election for Congress with a
citizen.
MR. LEE. — As to mere empty names, as to sounds, we must
be very corrupt, we must be very ignorant, if we could be
alarmed by them. And in this free country every man had a
right to call himself by what name or title he pleased; and, if
the mover thought proper to change his name for any other
name, sound, or title, it would neither add to nor dimmish his
real worth and importance; it would not give qualities to his
heart which he had not before, nor detract from those he had.
What were the mischiefs experienced in Europe from privileged
orders? They did not flow from the names by which those
orders were distinguished ; they arose from the exclusive prefer
ence and privileges which those orders possessed in political
rights and in property. Without these their titles would have
been mere empty gewgaws, ridiculous in the extreme, and un
worthy of the acceptance of any man of common sense, j Titles,
then, did not produce the mischiefs ; but the privileges annexed
to titles. In this country every citizen was equal to his fellow-
citizen in political rights ; and the laws of the respective States
had wisely provided that property could not be accumulated
in such a degree in the hands of individuals as to give them an
improper influence in society. By the equal distribution of
estates individuals are prevented from being so rich as to
trample upon the necks of their equals. Great accumulations
of property are more likely, in fact, to introduce the effects of
aristocracy than are the ridiculous names by which individuals
VII— 2
18 GREAT AMERICAN DEBATES
may be distinguished. If it was the corrupting relation of lord
and vassal which rendered a foreigner an unfit member of an
equal republican government, he feared that this reasoning ap
plied to the existing relation of master and slave in the Southern
country (rather a more degrading one than even that of lord
and vassal) would go to prove that the people of that country
were not qualified to be members of our free republican Govern
ment. But he knew that this was not the case. Though in that
House the members from the State of Virginia held persons in
bondage, he was sure that their hearts glowed with a zeal as
warm for the equal rights and happiness of men as gentlemen
from the other parts of the Union where such degrading distinc
tions did not exist. He rejoiced that notwithstanding the un
favorable circumstances of his country in this respect, the virtue
of his fellow-citizens shone forth equal to that of any other part
of the nation. \
MB. DEXTER would vote for the resolution if the gentleman
would agree to an amendment, which was: "And, also, in case
any such alien shall hold any person in slavery, he shall re
nounce it and declare that he holds all men free and equal."
MR. GILES realized the sarcastic purpose of the gentleman's
amendment, but deprecated it as an ungenerous fling at the
members from the Southern States, who were contending as best
they could with a local evil. As for himself, he lamented and
detested slavery; but, from the existing state of the country,
it was impossible at present to help it. He himself owned slaves.
He regretted that he did so, and, if any member could point out
a way in which he could be properly freed from that situation,
he should rejoice in it. The thing was reducing as fast as could
prudently be done.
MR. MADISON mentioned regulations adopted in Virginia for
gradually reducing the number of slaves. None were allowed
to be imported into the State. The operation of reducing the
number of slaves was going on as quickly as possible. The men
tion of such a thing in the House had, in the mean time, a very
bad effect on that species of property, otherwise he did not know
but what he should have voted for the amendment of Mr. Dexter.
It had a dangerous tendency on the minds of these unfortunate
people.
MR. AMES. — Can the advocates of Mr. Giles's amendment even
affect apprehensions that there is any intention to introduce a
foreign nobility as a privileged order? If they can, such dis
eases of the brain were not bred by reasoning and cannot be
cured by it. Still less should we give effect by law to chimerical
NATURALIZATION 19
whimsies. For what is the tendency of this counterfeit alarm?
Is it to rouse again the sleeping apparitions which have disturbed
the back country? Is it to show that the mock dangers which
they have pretended to dread are real? Or, is it to mark a line
of separation between those who have the merit of maintaining
the extremes of political opinions and those whom this vote would
denounce as stopping at what they deem a wise moderation?
If that is the case, it seems that the amendment is intended
rather to publish a creed than to settle a rule of naturalization.
MB. MURRAY had no alarming apprehensions of nobility.
There had once been in this House a baronet. He was there for
two years before it was known, and it was then discovered that a
baronet was a thing perfectly harmless. As for titles of nobility,
he believed that all the sensible part of the community looked
upon the whole as stuff. When Mr. M. contemplated this sub
ject it reminded him of Holbein's " Dance of Death." He saw
nothing in this country but the ghosts of nobility.
The amendment of Mr. Giles, relative to forswearing
nobility, and that of Mr. Dexter, relative to forswearing
slavery, were both voted down.
MR. MURRAY then moved to extend the period of residence
from five to ten years.
MR. BALDWIN said this was opposed to the Constitution which
required a Senator to have lived only nine years in the country.
MR. S. SMITH was for the longer term, that the prejudices
which the aliens had imbibed under the government from whence
they came might be effaced, and that they might, by communi
cation and observance of our laws and government, have just
ideas of our Constitution and the excellence of its institution
before they were admitted to the rights of a citizen.
MR. FITZSIMONS thought that ten years were much too long
a time for keeping an alien from being a citizen — it would make
this class of people enemies to your Government. He was firmly
of opinion that emigrants deserved to be encouraged; and to
discourage them was an idea which till this day he had never
heard either in or out of the House. Nature seems to have
pointed out this country as an asylum for the people oppressed
in other parts of the world. It would be wrong, therefore, to
first admit them here, and then treat them for so long a time
so harshly.
Mr. Murray 's amendment was negatived.
CHAPTER II
THE ALIEN LAWS
Resolutions of the Committee for the Defence of the Country, Giving Pres
ident John Adams Power to Deport Aliens, Who Are Natives of Na
tions at War with the United States — Debate on the Resolution: in
Favor, John Rutledge, Jr. [S. C.], John Allen [Ky.], Samuel Sewall
[Mass.]; Opposed, Joseph McDowell [N. C.], and Albert Gallatin
[Pa.] — The Resolutions Are Passed — Resolution of the Committee for
Defence for Punishing Citizens Who Should Harbor Aliens — Debate on
the Resolution: in Favor, Mr. Sewall, Nathaniel Smith [Conn.], Har
rison Gray Otis [Mass.]; Opposed, James A. Bayard, Sr. [Del.], Mr.
Gallatin, Robert Williams [N. C.] ; the Resolution Is Passed — The
Senate Passes a Bill Empowering the President to Banish Such Aliens
as He Deems Suspicious Persons — The House Debates the Bill : in Favor,
Mr. Otis, Robert G. Harper [S. C.], Jonathan Dayton [N. J.] ; Op
posed, Mr. Gallatin, Mr. Williams, Edward Livingston [N. Y.]— The
Bill Is Passed.
DURING the Administration of John Adams the
dominant Federalists took a partisan advantage
of the general fear of foreign invasion due to
the French war scare by attempting more stringently
to restrict naturalization and thereby to cut off recruits
from the Republicans, since the emigrants, fleeing in
those revolutionary days from European or monarchical
tyranny, naturally allied themselves with the radical
and anti-Admistration party in their new home. A num
ber of the emigrants, indeed, were educated Irish and
Scottish radicals, who had taken up journalism in this
country and had excited the special animosity of the
Federalists by scurrilous abuse of the Administration
and by open and unqualified indorsement of the French
revolutionists.
On 3Iay^ 1P 1798. Samuel Sewall [Mass.], chairman
of the Committee for the Defence of the Country, re
ported drastic resolutions (1) for the increase of the
20
THE ALIEN LAWS 21
term of residence required for naturalization; (2) for
the registry of aliens; and (3} for the deportation, at
the pleasure of the Presidenf, of alien males over the
age of fourteen who were natives of countries at war
with the United States.
Leading advocates of these resolutions were: John {
Butledge, Jr. [S. C.], John Allen [Ky.], Mr. Sewall; *
leading opponents were: Joseph McDowell [N. C.] and
Albert Gallatin [Pa.].
ON DEBARRING ALIENS FROM CITIZENSHIP
HOUSE OF REPRESENTATIVES, MAY 2-21, 1798
The committee rose and reported the resolutions.
The two first were concurred in, but, on the question be
ing put on the third,
MR. MCDOWELL said it ought to be remembered that in
ducements had been held out to foreigners to come to this
country, and many of them had come with a view of becoming
citizens of this country, and many, he believed, were as good as
any among us. It has been said our population was now suffi
cient, and that the privileges heretofore allowed to foreigners
might now be withdrawn. In some parts of the country this
might, in some degree, be the case; but he knew there were
other parts which wanted population.
MR. RUTLEDGE said, in the situation of things in which we
are now placed, the President should have the power of removing
such intriguing agents and spies as are now spread all over
the country. What, said Mr. R., would be the conduct of
France if in our situation? In twenty- four hours every man
of this description would either be sent out of the country or put
in jail, and such conduct was wise. Was there nothing, Mr. R.
asked, to admonish us to take a measure of this kind ? Yes, there
was. A gentleman from Kentucky [Mr. Davis] had said that
a person was in that State delivering commissions into the hands
of every man who was so abandoned as to receive them. Other
means were also taken to alienate the affection of our citizens;
and are we still, said he, to say we will not send these persons
out of the country until a declaration of war is made ? If these
persons are suffered to remain France will never declare war,
as she will consider the residence of these men among us as of
22 GREAT AMERICAN DEBATES
greater consequence than the lining of our seaboard with priva
teers or covering our coasts with men.
MR. ALLEN said he would move an amendment which would
supersede that under consideration by making the resolution
extend to all aliens in this country. He wished to retain none
of the restraints which are in the present resolution. The propo
sition goes upon the supposition that none but the citizens of a
particular nation can be dangerous to this country; whereas
he believed that there are citizens of several other countries who
are as dangerous, who have dispositions equally hostile to this
country with the French — he believed more so. He believed the
whole country was aware of this. / Mr. A. alluded to the vast
number of naturalizations which lately took place in this city
to support a particular party in a particular election.! It did
not appear to him necessary to have the exercise of this power
depend upon any contingency, such as a threatening of invasion,
or war, before it could be exercised. He wished the President
to have it at all times. He moved an amendment to this effect,
which went to enable the President to remove at any time the
citizen of any foreign country whatever, not a citizen, regarding
the treaties with such countries. If gentlemen took a view of the
different states of Europe which had been subdued by the
French, Mr. A. said, they would not think it either wise or
prudent to wait for an invasion, or threatened invasion, before
this power was put in execution. Venice, Switzerland, and Rome
had been overcome by means of the agents of the French na
tion at a time when they were in a much less alarming situation
than we are at present ; and the first disturbance in those coun
tries was made the pretext of open hostility. This has been the
effect of diplomatic agency; of emissaries, within and without,
who have bred quarrels for the purpose of forming pretexts for
measures which have led to the subjugation of those countries.
He believed there were citizens in this country who would be
ready to join a foreign power in assisting to subjugate their
country.
MR. SEWALL said civil policy regarded aliens in two lights,
viz. : alien friends and alien enemies. He did not contemplate
the making of this country a wall against all aliens whatever;
or that no alien should come here without being subject to an
arbitrary authority, such as is known only to the French Direc
tory. If the existence of such a power as shall be able to place
every alien in the country in a dungeon was necessary to quiet
the fears and apprehensions of the gentleman from Connecticut,
he should not be willing to grant it.
THE ALIEN LAWS 23
What, said Mr. S., is to be feared from the residence of
aliens among us ? Anything to ruin the country ? He acknowl
edged many inconveniences arose from this circumstance, but
more from our own unnatural children, who, in the bosom of
their parent, conspired her destruction. But did the gentleman
wish to increase the evil by saying that persons born in foreign
countries, however regular and orderly their conduct may be,
shall be liable to be imprisoned or sent out of the country, but
that citizens of this country, however reprehensible their con
duct, shall have nothing to fear? Unless the United States
were inclined to assume the character of the Turks or Arabs,
such a regulation as was recommended by the gentleman from
Connecticut could not be adopted.
MB. GALLATIN would suggest that a part of the Constitution
might be in the way of this motion.
By turning to the 9th section of the Constitution, it is found
that the migration of such persons as any of the States shall
think proper to admit shall not be prohibited by Congress prior
to the year 1808.1 He understood it, however, to be a sound
principle that alien enemies might be removed, although the
emigration of persons be not prohibited by a principle which
existed prior to the Constitution, and was coeval with the law
of nations. The question was, therefore, whether the citizens
or subjects of nations in actual hostility can be considered as
alien enemies. The term "actual hostility" is vague in its na
ture and would introduce doubt as to its true import.
The resolutions were recommitted to the Committee
for the Defence of the Country. On May 21 Mr. Sewall,
the chairman of the committee, made its report, which
was (1) that the term of residence required of applicants
for citizenship be extended to fourteen years, and (2)
no alien coming from a country at war with us shall be
admitted to citizenship while such war continues. The
first resolution was passed by a vote of 41 to 40, and the
second agreed to without division.
When the Republicans came into power they repealed
this bill (April 14, 1802), and reestablished the former
conditions of naturalization. ^
On May 22, 1798, there was presented to the House
the third of the original resolutions of the Committee for
the Defence of the Country, that respecting the deporta
tion, at the pleasure of the President and by his procla-
24 GREAT AMERICAN DEBATES
mation, of aliens who were born in a country which was
either at war with the United States or was threatening
invasion. To the original resolution was added a section
by which the execution of the act, in relation to these
aliens and all who shall harbor them, was committed to
all the judicial and ministerial officers of the Federal and
State governments.
The debate on this resolution was long and animated.
The chief speakers in its favor were Mr. Sewall, Nathan
iel Smith [Conn.], Harrison Gray Otis [Mass.]; its
leading opponents: James A. Bayard, Sr. [De\.], Albert
Gallatin [Pa.], and Eobert Williams [N. C
Del.
•M
ON PUNISHING HAKBOKEKS OF ALIENS
HOUSE OF REPRESENTATIVES, MAY 22-JuNE 26, 1798
MB. BAYARD said the last section of this bill contained a prin
ciple contrary to all our maxims of jurisprudence, viz. : to
provide punishment for a crime by a law to be passed after the
fact is committed. Whether the crime to be punished is to
amount to treason, misprision of treason, or be only a misde
meanor is left uncertain. It was his opinion that laws could
not be too definite; but it would be impossible in this case for
the person committed to know what crime he had committed, or
to what punishment he was liable. He moved, therefore, to
amend the bill by making the crime a misdemeanor, punishable
by fine and imprisonment.
MR. SEWALL acknowledged there was a good deal of uncer
tainty in that part of the bill mentioned, but the select commit
tee did not see any way of remedying the evil without making
the law too mild in its operation. In some cases the offence
would amount to high treason, the punishment for which is
death; in others, to misprision of treason, the punishment for
which is imprisonment not exceeding seven years and a fine not
exceeding one thousand dollars. As the offence might, there
fore, sometimes amount to high treason, there would be an im
propriety in making it uniformly a misdemeanor.
If an alien should have resided here for a number of years
and he should turn out to have been a spy, and a citizen of the
United States should have harbored and concealed the said
alien, knowing him to have been a spy, he would be chargeable
with high treason for aiding and abetting the enemies of the
THE ALIEN LAWS 25
United States within its territory, or, at least, a misprision of
treason.
But the gentleman from Delaware was mistaken in his idea
that it was intended to try an offender by a law passed after the
offence was committed. I By the expression "as by law is or shall
be declared" was meant only such law as should be passed
between the present time and the time of committing any
offence.
The question of Mr. Bayard's amendment was put
and carried, 44 to 25.
On motion of Mr. Bayard the blank for containing the
amount of the penalty in the amendment just carried was
filled with one thousand dollars.
MR. N. SMITH hoped this amendment would not be agreed to.
He believed the penalty might, in some cases, be too severe, and,
in others, by far too mild. This being the condition of things,
to make an uniform punishment for all cases, whether highly
criminal or no crime at all, cannot be proper.
MR. BAYARD hoped the amendment would be agreed to. He
did not know that a greater misfortune could happen to any
man than to live in a country where the laws are so indefinite
that a person cannot ascertain when he commits an offence, or
what is the penalty of an offence when it is committed. The
fact was of a definite nature and a definite punishment ought to
be made for it. What is the fact? It is the harboring and
concealing of an alien enemy after the proclamation of the
President. Gentlemen say this offence may amount to treason,
misprision of treason, or other offence. If the offence could
amount to treason he owned he did not understand the bill,
because the crime of treason is defined by the Constitution, and
could not be varied by any law of Congress. If, then, the fact
amount to treason, it will not be included in this law. If gen
tlemen wished to punish persons in exact conformity to their
degree of offence they ought to prepare a scale of offence for
that purpose.
MR. SEWALL said this bill declares that a person harboring
an alien enemy shall be a suspected person; but the crime and
punishment must be ascertained by other laws; and by these
offenders are to be punished agreeably to their offences, whether
they be great or small.
MR. GALLATIN said, if he understood the gentleman from
Massachusetts, it was not the object of this bill to define the
26 GREAT AMERICAN DEBATES
nature of the offence of which a person shall be guilty or the
punishment for it, for harboring and concealing an alien enemy,
but only that certain circumstances should render a man a sus
pected person. This, to him, was altogether a new legislation.
If he understood the bill as it stood rightly, a person may
be apprehended and imprisoned on account of his having har
bored and concealed alien enemies; yet the gentleman from
Massachusetts says this is in itself no crime; for, if it were a
crime, it ought to be punished in the way proposed by the gen
tleman from Delaware, but he states it to be only a sufficient
ground of suspicion. This, Mr. G. said, was not only contrary
to every principle of justice and reason, but to the provisions
of the Constitution. The Constitution says: "That no person
shall be deprived of life, limb, or property without due process
of law. ' ' But here certain persons may be deprived of their lib
erty without any process of law, or being guilty of any crime.
Yet the gentleman from Massachusetts says that this bill does
not define a crime or award a punishment. But, Mr. G. said,
this assertion was not correct; for there was a new crime in
stituted, which was that of being a suspected person, and the
overt act which is to be evidence of that crime is the harboring
and concealing of an alien enemy, and the punishment is to be
apprehension and imprisonment until it shall be found what
law the prisoner has offended.
Mr. G. said he was ready to acknowledge that, where a man
commits an offence, he ought to be punished; but he could not
consent to punish any man on suspicion merely. He therefore
moved to recommit the bill. He did this because he thought
the whole of the bill vague in its nature. He wished it to be
more in detail, and that the offences to be punished should be
defined; for it was remarkable that every section of the bill
concluded with these singular words: "Subject, nevertheless,
to the regulations which the Congress of the United States shall
thereafter agree and establish." So that, instead of deciding
what the law should be, it gives the President the power of
saying what it is; subject to the after-regulations of Congress.
He wished now to make the law to declare what the offence
should be, and what the punishment, and not leave it to the
President to make what regulations he shall think proper. If
not, the whole of the bill might as well be in two or three words,
viz.: "The President of the United States shall have the power
to remove, restrict, or confine alien enemies and citizens whom
he may consider as suspected persons." When Congress at
tempted to legislate they ought not to do it in this way. When
THE ALIEN LAWS 27
the resolution was agreed to, authorizing this bill to be reported,
he expected the committee would have denned the nature of
offences and their punishments, and not reported the bill in
the vague way in which it is before the House, especially as this
appears not to be meant for a temporary, but a permanent,
law.
If gentlemen examine the third section of the bill it will
be found that all judges, justices, marshals, sheriffs, and other
officers, and all the good people of the United States are bound
to do — what? Not to execute any law; but to carry into effect
any proclamation, or other public act, of the President. So
that, instead of the judicial and any other officers of the United
States, and the people at large, being obedient to the laws, they
are to be obedient to the will of the President.
The last clause of the bill, which does not relate to aliens,
but to our own citizens, is very objectionable. It is in the shape
of a penal law, and the crime it defines is the harboring and
concealing of alien enemies. Now, it is said that this crime
may amount to high treason by its being construed that an
offender has adhered to the enemies of the United States, know
ing them to be such, or it may be no offence at all. But the
provision is general; and a man guilty of no offence is liable
to be apprehended and imprisoned equally with the highest
offender under this law. I
MR. SEWALL said that it is necessary to provide for the public
safety, and in all countries there is a power lodged somewhere
for taking measures of this kind. In this country this power
is not lodged wholly in the Executive; it is in Congress. Per
haps, if war was declared, the President might then, as Com-
mander-in-Chief, exercise a military power over these people;
but it would be best to settle these regulations by civil process.
They would be regulated by the treaties as well as by the laws
of nations. The intention of this bill is to give the President
the power of judging what is proper to be done, and to limit
his authority in the way proposed by this bill.
^ MR. OTIS said that, unless gentlemen were disposed to suffer
a band of spies to be spread through the country from one end
of it to the other, who, in case of the introduction of an enemy
into our country, may join them in their attack upon us and
in their plunder of our property, nothing short of the bill like the
present can be effectual.
He was willing to say that, in a time of tranquillity, he
should not desire to put a power like this into the hands of the
Executive; but, in a time of war, the citizens of France ought
28 GREAT AMERICAN DEBATES
to be considered and treated and watched in a very different
manner from citizens of our own country.
As to the objection made by the gentleman from Pennsyl
vania, that the bill provides a punishment for suspected persons
and that the word " suspected" was indefinite, Mr. O. asked
whether men are not usually arrested on suspicion? When in
formation is lodged against a man for committing an offence he
is suspected of being guilty and imprisoned until he can be
examined. 7
' MR. NATHANIEL MACON [N. C.] made a motion to recommit
fe whole bill, which was negatived — 37 to 36. |
MR. GALLATIN then made a motion to recommit the third sec
tion, which was negatived by the casting vote of the Speaker,
there being 38 votes for it and 38 votes against it.'
The bill was read the third time when —
MR. R. WILLIAMS moved a recommitment of the bill. He
said his objections did not lie so much against the provisions
respecting aliens, as to the power proposed to be given to the
President of issuing proclamations, which are to be binding on
the judges and other officers with respect to our own citizens.
He would wish to designate every offence and its adequate pun
ishment, as far as it could be done. In order to effect this he
made his motion.
MR. SEWALL said the gentleman from North Carolina seemed
not to object to the powers given to the President by the first
and second sections of the bill, but he did not wish him to
have any officers to execute his powers. If the President is
authorized to issue orders, he must be authorized to require the
aid of proper persons to execute them.
j MR. GALLATIN called for the yeas and nays upon this ques
tion, which, being agreed to, he hoped this bill would be recom
mitted. He had no doubt that the committee, by paying due
attention to the subject, instead of this general and vague bill
might report such rules and regulations as would be proper to
be adopted on this occasion. He recollected seeing a bill from
the Senate on this subject in which something of this kind was
done [see the following debate] ; and, though he did by no means
approve of that bill, yet it showed that the thing was not im
possible. The objection made against a recommittal of this bill
was that it was necessary to do something to provide means for
securing and removing alien enemies, which did not apply as
an argument against the recommitment of the bill. It was a
good reason why a bill should be passed, but no reason why it
should pass in its present form. The present bill, Mr. G. said,
THE ALIEN LAWS 29
was grounded upon the principle that the President of the
United States shall have the power to do by proclamation what
ought only to be done by law.
The power of the President, Mr. G. said, did not stop at
aliens ; it extended to all the citizens of the United States. The
object of the last section provides that justices, judges, marshals,
sheriffs, and the people at large shall perform a duty which is
undefined. But the gentleman from Massachusetts says this is
right, because the power given to the Executive by this bill is
also undefined. This is the foundation of all the objection made
to this bill; it is to the want of legislation in it, which leaves
not only alien enemies, but citizens of the United States, to the
will of the President.
He could conceive that the House might take into considera
tion the nature of the powers vested in the President and in
quire what will be the duties required to be performed by the
several officers of the Government to carry into effect those
powers. Those powers are to apprehend, restrain, secure, and
remove alien enemies and to sequester their property. As to
the removal of aliens, he could not see what justices and judges
had to do with it; but, if they had anything to do with it,
Congress ought to say what.
The last part of the third section, he said, was as objec
tionable as any other. It defines the crime in two words : ' ' har
boring and concealing, ' ' and the penalty, if the accused is found
guilty of this vague and uncertain charge, is imprisonment not
exceeding seven years and a fine not exceeding one thousand dol
lars. So that, if a person be found guilty of harboring and con
cealing an alien enemy, however trifling the expense may be, his
punishment will be left wholly to the discretion of the court.
The only power of the jury will be to decide on the fact ; and, if
a citizen has harbored for one night, however undesignedly, an
alien enemy, he must be found guilty, leaving it altogether to
the court to judge of the criminality of the act and to affix
the degree of punishment. He thought this part of the law
ought to be more clearly defined. It ought to distinguish be
tween cases of misdemeanor and those cases which might arise
merely from ignorance and in which no offence at all might
exist. He hoped, therefore, that the bill would be recommit
ted;
The question on recommitting the bill was put and
carried, 46 to 44.j
The bill was modified by the committee in a way to
30 GREAT AMERICAN DEBATES
remove the objections of its opponents, and passed on
June 26 by a vote of 56, the negative not being taken.
Before the passage of the preceding bill one was re
ceived from the Senate, empowering the President to
order such aliens as he deemed dangerous to depart from
the country, and, upon their failure to do so, to imprison
them for three years and debar them thereafter from be
coming citizens. If any alien should return after ban
ishment he was to be imprisoned, with hard labor, for
life. Ship captains were ordered to report all aliens on
their vessels, on pain of a fine of $300.
In the discussion which ensued in the House on this
bill many of the arguments of the preceding debate were,
naturally, repeated.
The discussion, however, soon lifted from the par
ticular issue as to the President's power over aliens to
the general ones of all his powers and the powers of Con
gress under the Constitution. For the first time in
American politics the line was clearly drawn between the
strict and loose construction of the Constitution, the
Democratic Eepublicans adhering to the letter of the
Federal charter and the Federalists construing it to per
mit presidential and congressional authority over mat
ters not specifically granted therein.
The leading speakers in the House in support of the
Senate bill were Mr. Otis, Robert Goodloe Harper [S.
C.], and Jonathan Dayton [N. J.]. Those opposing it
were Mr. Gallatin, Mr. Williams, and Edward Livingston
[N. Y.].
STRICT AND LOOSE CONSTRUCTION OF THE CONSTITUTION
HOUSE OF REPRESENTATIVES, JUNE 8-JuNE 21, 1798
MR. GALLATIN said it has been declared by the gentleman
from Massachusetts [Mr. Sewall] that this power over aliens
is included in the power given to Congress to regulate com
merce; the gentleman from Delaware [Mr. Bayard] believes it
to be contained in that clause of the Constitution which gives
to Congress the power to lay and collect taxes, by which he
argues power is also given to provide for the common defence
THE ALIEN LAWS 31
and general welfare; but another gentleman from Massachusetts
[Mr. Otis] and a gentleman from Connecticut [Mr. Dana] drew
this power from that which they say every government must
have to preserve itself.
Mr. G. said he would offer a few remarks upon each of these
reasons. In the first place, the power was said to be included
in the power to regulate commerce. But this bill is not in
tended for any commercial purpose; it is wholly of a political
nature, intended to effect political ends, and does not relate to
aliens as merchants. If Congress has any power which they can
exercise on the persons of aliens, it might relate only to mer
chants, to them as merchants — to their professions, not to their
existence as men.
With respect to the clause of the eighth section, contended
for by the gentleman from Delaware, it was in the following
words: "Congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts, and provide
for the common defence and general welfare of the United
States," and that no gentleman contended that its meaning was
to give power to Congress, in the first place, to lay taxes, and,
in the next place, to provide for the common defence and gen
eral welfare of the United States. But the obvious and univer
sally received meaning of the last words was not to give a general
power altogether unconnected with the remaining part of the
sentence, but to define the purpose for which taxes should be
laid. Had the construction of the gentleman from Delaware
been intended, the power would have been given in a distinct
paragraph, in the same manner as all the other powers are
given, instead of placing the words in this way in the middle
of a paragraph relating to a quite different subject. If this new
construction was adopted there would have been no need to
have enumerated the powers given to Congress in this and other
sections, because such a broad power as that contended for would
have embraced every other.
Nor is this all. The twelfth * amendment of the Constitution
seems to have apprehended some improper use being made of
the sweeping clause by taking it as a ground for power never
intended to be given, and, therefore, it declares that "the powers
not delegated to the United States by the Constitution, nor pro
hibited by it to the States, are reserved to the States respectively,
or to the people ' ' ; but, if the construction now spoken of were
to prevail, this amendment could have no application; for, if
all the powers are delegated to Congress by that clause, how
'Now the ttnth.
32 GREAT AMERICAN DEBATES
could it be said that the powers not delegated were reserved to
the States?
To show that, at the time the Constitution was adopted, no
such opinion as this prevailed Mr. G. referred to the debates had
upon it in the Pennsylvania convention. He particularly quoted
the sentiments of Mr. Wilson, who spoke of this provision for
raising taxes as being necessary for the common defence and
general welfare. Mr. Wilson expressed himself as follows:
' ' Certainly Congress should possess the power of raising revenue
from their constituents for the purpose mentioned in the eighth
section of the first article, that is, to pay the debts and provide
for the common defence and general welfare of the United
States"; and again: "I think it would be very unwise in this
convention to refuse to adopt this Constitution, because it grants
Congress power to lay and collect taxes for the purpose of pro
viding for the common defence and general welfare of the
United States." Mr. G. also quoted from "The Federalist,"
written by the members of the Federal convention in defence of
the Constitution before its adoption.
Mr. G. said he was well informed that those words had orig
inally been inserted in the Constitution as a limitation to the
power of laying taxes. After the limitation had been agreed to,
and the Constitution was completed, a member of the convention x
(he was one of the members who represented the State of Penn
sylvania) , being one of a committee of revisal and arrangement,
attempted to throw these words into a distinct paragraph so as
to create, not a limitation, but a distinct power. The trick,
however, was discovered by a member from Connecticut,2 now
deceased, and the words restored as they now stand. So that,
Mr. G. said, whether he referred to the Constitution itself, to
the most able defenders of it, or to the State conventions, the
only rational construction which could be given to that clause
was that it was a limitation, and not an extension, of powers.
Another gentleman from Massachusetts [Mr. Otis] has taken
a kind of general ground, supposing that there must exist cer
tain general powers in Congress which are equal to meet any
possible case. He could not say that he rightly understood the
meaning of that gentleman. If he meant that all power should
be vested in Government, because it is possible that occurrences
may arise which will call for the exercise of them, he would
not hesitate to say that doctrine is contrary to the Constitution,
for that has put limits to the powers of the Government, and has
1 Gouverneur Morris is referred to.
3Boger Sherman is referred to.
THE ALIEN LAWS 33
said certain things shall not be done by it. For instance, it might
be thought necessary, though neither an invasion nor a rebellion
had taken place, to suspend the habeas corpus act, as had been
the case in Great Britain some time ago. It was there repre
sented that a dangerous conspiracy existed against the Govern
ment, and that, in order to meet it with effect, it was necessary to
suspend the habeas corpus act. Reasoning on the same ground,
the gentleman from Massachusetts might say that a danger
ous conspiracy now exists here, that he has got hold of
the threads of that plot which the gentleman from South
Carolina [Mr. Harper] has pledged himself to this House a
few days ago to pursue through all its ramifications, and move
for a suspension of the habeas corpus act. But the Constitu
tion would be directly against such a motion, as it is there said
"it shall not be suspended but in cases of actual rebellion or
invasion. ' ' So that this Government cannot do everything which
the gentleman may suppose necessary to be done. Or did the
gentleman mean that Congress ought to exercise all the powers
that may be vested in Government in this country? Such a
sentiment is also flatly contradicted by the Constitution, as
it recognizes a division of powers between the general and State
governments. Thus, in the instance before the committee,
Congress has the power to declare war and to punish any per
sons guilty of treasonable practices, but what relates to aliens
as suspicious characters the Government of the United States
has no cognizance of. It is a matter which remains with the
State governments; and, if there was any necessity for passing
a law on the subject, there could be no doubt it would be done
by the proper constitutional authority — the State governments.
Or did gentlemen mean that the power for providing for the
common defence should absorb all other powers, and that, if
this power was limited, the Constitution is not worth a farthing ?
Did he wish, except the Constitution would authorize an act
of this sort, it should be overset ? Did he like the Constitution
only for the powers it gave, and not for the restraints it put on
power? Did he intend to declare himself an enemy to every
part of the Constitution which restrains the power of the general
Government? He could not suppose that this was his opinion;
and, if it was not, he did not understand what he meant.
As to the general declaration contained in the preamble
of the Constitution, he would remark that the Articles of Con
federation under the old Congress had several expressions of
the same nature. The power was there said to be given for
the general defence, showing that to have been the object of
VII— 3
34 GREAT AMERICAN DEBATES
the Union. The same articles gave power to Congress to declare
war, and several other powers of a general nature in which such
a power might equally be supposed to be included; and it was
on this account that he stated that the old Congress never acted
on this subject, merely because the general powers of both
governments being nearly similar, the opinion of the old Con
gress, in relation to their own authority, was applicable to the
present instance.
In opposing this bill it might not be supposed to be necessary
to go further than to show that the power of passing a law like
the present had not been given to this Government. But it so
happened that, supposing he was mistaken in that position,
another clause expressly prohibited the exercise of that power
for the present, even if it did exist at all. He would, therefore,
proceed to notice some of the objections which had been urged
against his observations on the ninth section of the first article
of the Constitution, which says that Congress shall not prohibit
the migration of such persons as the States choose to admit.
Mr. G. took it for granted that, whatever is not prohibited
is permitted ; and, so long as no law of any State prohibits the
admission of aliens, he supposed all are admitted. Indeed, the
admission is recognized by laws in every State.
Again, it was said that this clause relates solely to slaves, as
an exception granted of the power to regulate commerce. In
answer to this he said that the word migration, as contradistin
guished from the word importation, could apply only to a free
act of the will, and to the voluntary arrival of free persons
coming to this country, in the same manner as the word im
portation could apply only to slaves brought into the United
States without their consent ; and the word persons was of the
most general acceptation, and could by no means exclude free
emigrants. That this even was well understood at the time of
the adoption of the Constitution, he would prove by the fol
lowing quotation from James Wilson's speech in the debates of
the Pennsylvania convention: "The gentleman [Mr. Findley]
says that it is unfortunate in another point of view; it means
to prohibit the introduction of white people from Europe, as
this tax may deter them from coming among us; a little impar
tiality and attention will discover the care that the convention
took in selecting their language. The words are the migration
or importation of such persons shall not be prohibited by Con
gress prior to the year 1808, but a tax or duty may be imposed
on such importation; it is observable here that the term migra
tion is dropped, when a tax or duty is mentioned ; so that Con-
THE ALIEN LAWS 35
gress have power to impose the tax only on those imported."
The argument, therefore, stood thus: Either the general
power of preventing the migration of aliens is included in the
powers given by the Constitution to Congress, or it is not. If it
is not included, and that was his decided opinion, the present
bill is unconstitutional. But if, by implication, it may be
derived from any of the specific powers given to Congress,
whether that of regulating commerce, of declaring war, or of any
other, or if it be included in a supposed general power of pro
viding for the common defence and general welfare, even, in that
case, its exercise is prohibited to Congress by this clause till the
year 1808, and, on this ground, the present bill is also unconsti
tutional.
Mr. G. thought when a constructive power of this kind was
claimed it was time that a stand should be made against it. He
looked upon the provision not only as unconstitutional, but as of
a most arbitrary nature, grounded upon a supposition which
has not been proved, and upon another which does not exist.
The supposition is not proved that the measure is necessary
on account of danger to be apprehended, from there being aliens
resident in the country dangerous to its peace. The persons
from whom this danger is apprehended are either alien friends
or alien enemies. So far as relates to the latter they are provided
for in another bill. The whole of the arguments on this bill,
therefore, are applicable only to alien friends. And here he
must take notice that, although Congress has not the power to
remove alien friends, it cannot be inferred, as had been objected,
that it had not the power to remove alien enemies; this last
authority resulted from the power to make all laws necessary
to carry into effect one of the specific powers given by the Con
stitution. Among these powers is that of declaring war,
which includes that of making prisoners of war and of mak
ing regulations with respect to alien enemies, who are liable
to be treated as prisoners of war. By virtue of that power, and
in order to carry it into effect, Congress could dispose of the
persons and property of alien enemies as it thinks fit, provided
it be according to the laws of nations and to treaties.
No facts had appeared, with respect to alien friends, which
require these arbitrary means to be employed against them. If
there are gentlemen possessed of facts of this kind, it is their
duty to lay them before the House. But, while these proofs are
held back, gentlemen have a right to say no necessity exists for
such a measure. He supposed gentlemen who spoke with so much
confidence on this subject must be possessed of facts unknown
36 GREAT AMERICAN DEBATES
to him, otherwise they would be unjustifiable in creating a
groundless alarm; but the House had a right to inquire what
the facts are, if they did exist, and whether they relate to alien
friends or alien enemies.
He would not only say that this bill was founded on a sup
position which was not proved, but, also, that it took for granted
another position which did not exist. If there be any danger,
it is certainly such as may be punished by the laws of our coun
try, without adopting a measure of this kind. The laws of the
United States will reach alien friends, if guilty of seditious or
treasonable practices, as well as citizens. And, if the law is not
at present sufficient to reach every case, it might be amended.
He wished all crimes and punishments to be accurately defined ;
and he hoped gentlemen who profess to be warm supporters of
this Government and Constitution, will not say that it is not in
our power to reach the object. And, if it be necessary to send
certain persons out of the country on account of their mal
practices, he trusted laws would be framed for the purpose of
punishing them, and that they would not be left without trial,
subject to the arbitrary control of one man only.
This bill not only was grounded upon a supposed necessity
which did not exist, but it appeared to him that if it was passed,
a bill of a similar nature might be brought in in relation to citi
zens of the United States. This bill is called a bill concerning
aliens; but in its consequences it affects citizens as much as
aliens ; for he called upon the supporters of this bill to show him
a single clause in the Constitution which has been referred to
in support of this bill, which would not equally justify a similar
measure against citizens of the United States. And, so far as
relates to the necessity of the bill, the plea may be equally made
against citizens as against aliens; for what is the ground upon
which this power is claimed? It is by virtue of the power
vested in Congress to regulate commerce. And what is this
power? It is "to regulate commerce with foreign nations and
among the several States, and with the Indian tribes." There
fore, if, by virtue of the power of Congress to regulate com
merce with foreign nations, they can remove foreigners from the
country by the same reasoning (bad reasoning he knew it was) ,
they had a similar power of removing citizens of the several
States. And, when another gentleman tells us that the power
is claimed under certain powers given to Congress to provide
for the common defence and general welfare, would it not apply
to citizens as well as aliens? It certainly would, since they
might argue that seditious and turbulent citizens might be as
THE ALIEN LAWS 37
dangerous to the peace of the country as aliens of a similar
description ; and, when gentlemen are disposed to treat the Con
stitution in this way to come at aliens, he had no doubt they
will be equally ready to do it against citizens whenever they
shall wish to do so.
Or will gentlemen say that the Constitution affords a security
to citizens which it does not extend to aliens? He knew the
rights of aliens are limited; but, if we can dispense with the
law toward them, we may also do it with respect to citizens.
The trial by jury does not speak of citizens, but of persons.
What security, said Mr. G., can citizens have when they see a bill
like the present pass into a law?
Again, with respect to the writ of habeas corpus, what do
gentlemen say? They say it is only to prevent any man from
being imprisoned in an arbitrary manner; and that, as the
present bill describes the cases in which a man is liable to ar-
restation and imprisonment, it cannot be a suspension of that
law ; that is to say, the writ of habeas corpus is designed to pre
vent arbitrary imprisonment, or what the gentleman calls illegal
imprisonment; but, according to this doctrine, if you give, by
law, the power to the President of arbitrary imprisonment, that
power, being thus given by law, is on that account no longer
illegal nor arbitrary. That was the kind of security which
citizens might expect to derive from the clause of the Constitu
tion which related to the writ of habeas corpus. That privilege
was to be done away by a legal distinction.
By the seventh amendment 1 to our Constitution, it is pro
vided that "no person shall be deprived of life, liberty, or
property without due process of law." According to the doc
trine of the gentleman, Congress may give, by law, the power
to the President, or anyone else, to deprive a citizen of his
liberty or property, and the act of giving that power by law
will be called the due process of law contemplated by the Con
stitution.
A gentleman had said that States must claim only local
powers, general ones being placed in the general Government.
But the present bill was more of a local than of a general nature.
Those States whose population is full, and to which few migra
tions take place, are little concerned in this question, unless, in
deed, to check the population of other States and to keep a pre
ponderance in their hands be an object with them. It was of
consequence only to those States whose population is thin and
whose policy it has always been to encourage emigration. Among
1 Now the fifth.
38 GREAT AMERICAN DEBATES
these he placed the State of Pennsylvania. Indeed, he had al
ways thought it was the general policy of this country; he be
lieved it had only been the violence of party which had created
any difference of opinion on the subject. It had been an estab
lished principle in Pennsylvania, from its first establishment
to the present time, and every encouragement had been held out
to emigrants of all nations. On this account, if this bill passes,
there will be ten times the number of people under its operation,
and the arbitrary power of the President, in this State than
there will be in all the New England States put together. Emi
gration, he said, had been very useful to Pennsylvania. It is
owing to it that its population had, within a little more than
a century, reached its present extent. Nor had the mixture of
emigration from Great Britain and Germany produced any bad
effect upon the policy of the State. He believed it could boast
of civil establishments as wise and as good as any of her sister
States. And, in such a bill, assuming a power belonging to her
self and not to the United States, and affecting her population
and prosperity to such an extent, Pennsylvania was immediately
and deeply concerned.
Let it be remembered that the Declaration of Independence,
in the enumeration of the complaints of America against the
King of Great Britain, states that ' * he has endeavored to prevent
the population of these States, for that purpose obstructing the
laws for the naturalization of foreigners, refusing to pass others
to encourage their migration hither, " etc. The present bill re
lated not to any political rights; it affected the civil rights, the
personal liberty, the property of aliens. It subjects them to a
removal, upon suspicion, and that at the will of one man. It
was not only a refusal to encourage migrations, it was a bill to
prevent migrations.
MR. OTIS said it could not be denied that it was the design
of the Federal Constitution to embrace all our exterior relations.
The great objects of peace and war, negotiations with foreign
countries, the general peace and welfare of the United States,
must be provided for and maintained by the national Govern
ment ; no other authority is competent to these great duties ; no
other can judge of the necessity of measures preparatory to
the national defence nor enforce such measures with general
effect.
If Congress has the right to defend the Union it has cer
tainly the right to prepare for defence. And, if any specific
power had been claimed by the individual States which was in
consistent with this general power, it must vanish before the
THE ALIEN LAWS 39
obligation of the general Government to provide for the common
defence.
But he did not think the power of admitting foreigners,
which it was contended for by the gentleman from Pennsylvania
remained with the States, was inconsistent with the right of
expelling dangerous persons, which he claimed for the general
Government. That gentleman, Mr. 0. said, had interrogated him
in a very extraordinary manner. He has asked whether he
wished to overturn the Constitution? He should certainly an
swer: No; he did not wish to overturn it, but to preserve it
against the attempts of insidious and dangerous aliens, and he
thought this bill necessary for that purpose. He considered and
followed the Constitution as a lamp to his path ; whereas the
gentleman from Pennsylvania [Mr. Gallatin] would make the
Constitution a mere ignis fatuus, calculated to bewilder and
mislead.
Mr. 0. agreed that the construction was just that which the
gentleman put upon the first article of the eighth section of the
Constitution, and that to provide for the common defence and
general welfare was the end of the powers recited in the first
part of that section, and that the powers were merely the means.
But this is equally the end of all the other powers given to
Congress by all the articles of this section, so that these words
might, with propriety, be understood as if they were added to
every clause in it, and thus, from the whole section, it appeared
clear that Congress has a right to make war for the common de
fence and general welfare, and, of course, to do everything which
is necessary to prepare for such a state. And shall we, said
Mr. 0., allow that the States have a right to defeat this power?
If we find men in this country endeavoring to spread sedition
and discord; who have assisted in laying other countries pros
trate ; whose hands are reeking with blood ; and whose hearts
rankle with hatred toward us — have we not the power to shake
off these firebrands? Certainly we have. They were admitted
here under the rights of hospitality, exercised by nations toward
friendly strangers; but, when they become dangerous and hostile,
we certainly have a right to send them away. What will be our
situation if any one of the States may retain a number of men
whose residence shall be provably dangerous to the safety of
the United States? If such State should judge proper to make
regulations on the subject it could only banish a person from
its territory. So that persons of this description, stamped with
infamy in their own country and plotting treasons against ours,
may remain in some part of the territory of the United States,
40 GREAT AMERICAN DEBATES
while Congress has not the power to get rid of them until all
the States concur in the same object.
If this was the dilemma into which we are reduced by the
Federal compact, it might as well have never been made, for a
government that is prevented from exercising an authority which
may be necessary to its existence is not better than no govern
ment at all; and, if the individual States have the means of
frustrating the views of the general Government in the exercise
of its powers, the present Constitution would have no advantage
over the old Confederation. The simple ground on which the
question stood was this: Can the right of expulsion be exercised
by the United States without infringing the right of admission
which is reserved to the individual States? And, gentlemen, to
demonstrate the collision of these powers, put an extreme case,
and suppose that Congress may send out of the country all the
aliens who should be admitted by any State, and thus render
nugatory the right of importation reserved to the States. But
this is the old-fashioned way of arguing from a presumed abuse
of power. It is one thing to banish all aliens indiscriminately
and a very different thing to banish a few individuals of suspi
cious character. It is in the nature of a punishment for sup
posed offences, and there is no fear of involving innocence with
guilt. Aliens do not claim an exemption from punishment for
offences against the United States — when found guilty of crimes
the courts can sentence them to be imprisoned or to be punished
with death. And yet the gentleman from Pennsylvania might
as well say that such sentences are unconstitutional, because
the courts might imprison or hang up aliens as fast as they
are admitted into any State.
Mr. 0. contended that the limitation of the power of admit
ting aliens, which is reserved to the States till the year 1808,
implied that Congress might prohibit the migration of foreign
ers after that time, so that this ninth section of the Constitution
is only an exception from the general power, and must be con
strued strictly. If the United States have not this right they
cannot authorize the President to send away a public minister
who should threaten to convulse the nation, but a State might
retain such a minister contrary to the wishes and interests of
the United States.
Mr. O. wished gentlemen to inquire whether or not it is
now necessary to exercise this power. Gentlemen call for evi
dence of any alien's acting improperly in this country. If, he
said, proof positive and direct could be adduced the laws of
the country might be sufficient to punish them ; but is there not
THE ALIEN LAWS 41
sufficient reason to be alarmed on this subject, not only from
the fate of other countries, but from what has happened under
our own eyes. Do we not know, said he, that the French nation
have organized bands of aliens, as well as of their own citizens,
in other countries to bring about their nefarious purposes. It
is well known that their object is to divide and command ; and
they furnish the most dreadful commentaries upon this old
maxim. By these means they have overrun all the republics in
the world but our own. Do we not, said he, read the history of
their dark maneuvers in the fate of Holland and Switzerland?
And may we not expect the same means to be employed against
this country? We certainly might.
Mr. 0. said that this diplomatic agency had been in full
motion in the United States; he might mention names; but it
was well known to every gentleman of this committee that a
Frenchman of a literary and intriguing character, who was
formerly a member of the Club Breton, and was doubtless in the
confidence of the Directory, who has for a long time sojourned
in Pennsylvania, who had explored the Indian country and
traveled through other States, had lately taken flight. It was
also well known that a citizen of Pennsylvania, conspicuous
for his attachment to the French, had followed him. It was
lately discovered that another Frenchman who resided at New
York and who, he believed, was naturalized, is in the constant
habit of corresponding with the Directory, a man, who, though
holding no known agency under them at present, has heretofore
agitated the Continent by his intrigues and may be looked upon
as in their employ. And the same kind of correspondence is
traced up to our own citizens.
Mr. 0. concluded by saying the times are full of danger and
it would be the height of madness not to take every precaution
in our power. The right contended for was of inestimable value
to the United States, but to the individual States it would be
of no importance. The provisions of the Constitution were plain
and adequate to all the exigencies of the nation, and it was
wrong to waste that time in nice and unnecessary arguments
which ought to be employed in the most active preparations and
decisive measures. He hoped, therefore, the section would be
retained.
MR. HARPER said it was not without difficulty that he could
prevail upon himself to believe that the objections to this meas
ure, on Constitutional grounds, were serious. He could not
help being reminded, when he heard these objections urged,
of the saying of a witty writer upon a book still more sacred
42 GREAT AMERICAN DEBATES
than the Constitution, viz. : ' ' That it was a rich field into which
all parties sent their troops to forage." Mr. H. said if it be
wished to restrain a foreign enemy, or domestic traitors, and ef
fectual means are proposed, the House is told, by a novel dis
covery, that we have not the power of self-defence; though we
see the knife of the traitor held to our throats, we are to wait
until the State governments will come in and snatch it away.
Strange would it be if the Government could thus exist ; strange
would it be if it had not the power of suppressing domestic
traitors !
It was said that State governments only had cognizance over
aliens; but have these governments any knowledge of what re
lates to our foreign relations, or the common defence of the
Union? Certainly not. By admitting the doctrine which these
gentlemen advocate, what is the result? One State might expel
persons as dangerous, but an adjoining State might be of opinion
that the person ought not to be expelled; and, of course, such
a person would remain at liberty to act against the Government
and people of the United States; and, if the safety of the Gov
ernment of the Union is to depend upon the discordant wills of
sixteen States, deplorable and debased indeed would be its situa
tion.
Mr. H. allowed that the States have a right to admit such for
eigners as they think proper till a certain period; but the gen
eral Government is, in the meantime, charged with the common
defence and welfare of the United States, and, in pursuance
of those objects, it certainly has a right to pass all necessary
laws, and, if any of these laws should require certain aliens to
be sent out of the country, what has appeared to be necessary for
the general welfare cannot be carried into effect if the States
have a right to insist upon keeping their aliens.
The first paragraph of the ninth section of the Constitution
does not say Congress shall never have the power specified, but
that it shall not exercise the power until the year 1808, which
makes it pretty evident that the provision had relation only
to slaves. If it had related to emigrants it would have been
without any limitation of time. If Africans, or slaves, had been
inserted by name, the thing could not, in his opinion, have been
more clear.
With respect to citizens, we know they cannot be proceeded
against in this way. To argue the abuse of power from its exist
ence was a common subterfuge of gentlemen, which, if not dis
regarded, would prevent the giving any power whatever, and he
desired no better principle to completely stop the wheels of
THE ALIEN LAWS 43
Government, and to lay it prostrate at the feet of its external
and internal foes.
But it was said no necessity exists for this measure, and gen
tlemen call for proof of any danger to be apprehended from
the description of persons mentioned in this bill. Are we to
wait, then, said Mr. H., until a judicial process can be entered
upon ? To stay until the dagger is plunged into our bosoms be
fore we take any means of defence ? — Until the thief breaks into
our house before we bar the door? He believed no one would
say this would be good policy.
Suppose, said Mr. H., a person had good information that a
set of thieves meant to break into his house on a certain night,
what would be thought of the conduct of any individual who
should say to him: ''You need not prepare to defend yourself;
there is no occasion to bar the doors — there are no thieves in
the neighborhood?" Such a person certainly would be deemed
a partner in the burglary. The allegory, Mr. H. said, was ap
plicable to the fate of many nations whose governments have
been overturned by France. Mr. H. referred to the animating
picture of French intrigue given by the gentleman from Massa
chusetts. He trusted the bill would be passed. He wished no
traitors should be left in the country to paralyze all our efforts
for its defence and, when the enemy appeared, give him posses
sion of it.
The zeal shown in this House, and in other places, against
this bill evinces the deadly hatred of certain persons toward it.
But it was well known that those European nations which have
escaped being overcome by the domineering spirit of France
owe their safety to a bill like this; and, unless we follow their
example and crush the viper in our breast, we shall not, like
them, escape the scourge which awaits us.
MR. DAYTON (the Speaker) most unequivocally reprobated
the idea of Congress being confined to the strict letter of the
Constitution in the nature, extent, and exercise of the authority
vested in it. He said that a construction so narrow would be
absurd, and would go to deprive the legislature of the power of
making provisions upon the most common or most necessary
cases merely because they were not specified. He adduced in
stances to prove that they might legislate with a view to "the
general welfare," and, particularly, that, where a State, or part
of a State, should be overwhelmed by the sea, or otherwise ren
dered uninhabitable from some extraordinary convulsion, a grant
might be made to the people who were saved from the deluge
either of money from the national treasury or of a part of the
44 GREAT AMERICAN DEBATES
vacant public lands. He cited many acts that had already been
passed under that very general power of providing for the com
mon defence and general welfare, and asserted that, though the
Constitution was very useful in giving general directions, yet
it was not capable of being administered under so rigorous and
so mechanical a construction as had been sometimes contended
for.
MR. R. WILLIAMS said the gentleman last up is anxious to know
whether the Federal Government has not the power to provide
for the general welfare? Within the limits of the Constitution
it certainly has the right; but it might require all power to do
this; and then it would not, for if the general Government had
all this power nothing would be left for the State governments
to act upon. He wished gentlemen would mark the line of
distinction and say whether the individual States do not possess
some power to be employed for the general welfare as well as
the general Government, and whether the benefits thence arising
are not equally as serviceable to the public as when exercised by
the general Government?
The gentleman from South Carolina supposes States may
admit foreigners into their society, but may not be inclined to
punish them for breaches of their laws. Could so absurd an
opinion ever exist ? Besides, if States choose to act contrary to
each other in their internal policy, surely Congress has not the
power to make them uniform. One State may punish a man with
death for stealing a horse, and another may inflict upon him
imprisonment. Yet this they have a right to do, without the
interference of Congress.
In supporting this bill against aliens the gentleman from
South Carolina has shown its operation upon citizens, which
proves to him that the principle is intended to be carried further
than it appears at present. If we look into the history of other
countries we shall find that, whenever governments have wished
to make inroads upon the liberties of the people, nothing has
been more common than to institute an alarm of danger of some
kind or other. No such maneuver, however, should ever induce
him to grant an arbitrary power to the President of the United
States, or to any other man. It is not sufficient to say that the
general welfare requires a thing to be done ; because, if it be a
subject which belongs to the States, however necessary it may
be to be done, Congress cannot do it.
MB. HARPER, after some observations showing the impro
priety of treating persons confined for offences under this act as
common felons, moved to strike out the words "and confined to
THE ALIEN LAWS 45
hard labor for and during life ' ' and insert, in their place, ' ' dur
ing the pleasure of the United States."
The question on the amendment was put and carried,
there being 53 votes for it. The question of the passage
of the bill now came forward.
MR. LIVINGSTON, referring to the number of similar bills on
the exclusion of aliens, said: This circumstance gave me a
suspicion the principles of the measure were erroneous. Truth
marches directly to its end by a single undeviating path. Error
is either undetermined on its object or pursues it through a
thousand winding ways; the multiplicity of propositions, there
fore, to attain the same general but doubtful end led me to sus
pect that neither the object nor the means proposed to attain
it were proper and necessary. These surmises were confirmed
by a more minute examination of the act. In the construction of
statutes it is a received rule to examine what was the state of
things when they passed, and what were the evils they were
intended to remedy; as these circumstances would be applied
in the construction of the law it might be well to examine them
minutely in framing it. The state of things, if we are to judge
from the complexion of the bill, must be that a number of aliens,
enjoying the protection of our Government, were plotting its
destruction; that they are engaged in treasonable machinations
against a people who have given them an asylum and support,
and that there is no provision to provide for their expulsion and
punishment. If these things are so, and no remedy exists for
the evil, one ought speedily to be provided, but, even then, it
must be a remedy that is consistent with the Constitution under
which we act ; for, as by that instrument all powers not expressly
given by it to the Union are reserved to the States, it follows
that, unless an express authority can be found vesting us with
the power, be the evil ever so great, it can be remedied only by
the several States who have never delegated the authority to
Congress.
We must legislate upon facts, not on surmises ; we must have
evidence, not vague suspicions, if we meant to legislate with
prudence. What facts have been produced? What evi
dence has been submitted to the House? I have heard, sir,
of none. We have, indeed, been told that the fate of Venice,
Switzerland, and Batavia was produced by the interference
of foreigners. But the instances were unfortunate; because
all those powers have been overcome by foreign force, or di-
46 GREAT AMERICAN DEBATES
vided by domestic faction, not by aliens who resided among
them, and, if any instruction was to be gained from those re
publics, it would be that we ought to banish not aliens, but all
those who did not approve of the Executive acts. This, he be
lieved, gentlemen were not ready to avow; but, if this measure
prevailed, he should not think the other remote; but, if it had
been proved that these governments were destroyed by the con
spiracies of aliens, it yet remains to show that we are in the
same situation; or that any such plots have been detected, or
are even reasonably suspected here. Nothing of this kind has
been yet done. A modern Theseus, indeed, has told us he has
procured a clue that will enable him to penetrate the labyrinth
and destroy this monster of sedition. Who the fair Ariadne is,
who so kindly gave him the ball, he has not revealed ; nor, though
several days have elapsed since he undertook the adventure, has
he yet told us where the monster lurks. No evidence, then, being
produced, we have a right to say that none exists, and yet we
are about to sanction a most important act ; and on what ground ?
Our individual suspicions, our private fears, our overheated
imaginations. Seeing nothing to excite those suspicions, and
not feeling those fears, I could not give my assent to the bill
even if I did not feel a superior obligation to reject it on other
grounds.
Our Government, sir, is founded on the establishment of
those principles which constitute the difference between a free
Constitution and a despotic power ; a distribution of the legisla
tive, executive, and judiciary powers into several hands; a dis
tribution strongly marked in the three first and great divisions
of the Constitution; by the first, all legislative power is given
to Congress, the second vests all legislative functions in the
President, and the third declares that the judiciary powers
shall be exercised by the Supreme and Inferior Courts. Here,
then, is a division of the governmental powers strongly marked,
decisively pronounced, and every act of one or all of the
branches that tends to confound these powers, or alter this ar
rangement, must be destructive of the Constitution. Examine,
then, sir, the bill on your table and declare whether the first
section does not confound these fundamental powers of gov
ernment, vest them all in the more unqualified terms in one
hand, and thus subvert the basis on which our liberties rest.
Legislative power prescribes the rule of action ; the judiciary
applies that general rule to particular cases, and it is the prov
ince of the Executive to see that the laws are carried into full
effect. In all free governments these powers are exercised by
THE ALIEN LAWS 47
different men, and their union in the same hand is the peculiar
characteristic of despotism. If the same power that makes the
law can construct it to suit his interest and apply it to gratify
his vengeance; if he can go further and execute, according to
his own passions, the judgment which he himself has pronounced
upon his own construction of laws which he alone has made, what
other features are wanted to complete the picture of tyranny?
Yet all this, and more, is proposed to be done by this act; by
it the President alone is empowered to make the law, to fix in
his mind what acts, what words, what thoughts or looks shall
constitute the crime contemplated by the bill, that is, the crime
of being " suspected to be dangerous to the peace and safety of
the United States." He is not only authorized to make this
law for his own conduct, but to vary it at pleasure, as every gust
of passion, every cloud of suspicion shall agitate or darken his
mind. The same power that formed the law, then, applies it
to the guilty or innocent victim, whom his own suspicions, or
the secret whisper of a spy, have designated as its object. The
President, then, having made the law, the President having
construed and applied it, the same President is, by the bill, au
thorized to execute his sentence, in case of disobedience, by im
prisonment during his pleasure. This, then, comes completely
within the definition of despotism — an union of legislative
executive, and judicial powers. But this bill, sir, does not stop
here ; its provisions are a refinement upon despotism and present
an image of the most fearful tyranny. Even in despotisms,
though the monarch legislates, judges, and executes, yet he legis
lates openly; his laws, though oppressive, are known; they
precede the offence and every man who chooses may avoid the
penalties of disobedience. Yet he judges and executes by
proxy, and his private interests or passions do not inflame the
mind of his deputy.
But here the law is so closely concealed in the same mind
that gave it birth — the crime is <l exciting the suspicions of
the President, " but no man can tell what conduct will avoid
that suspicion — a careless word, perhaps misrepresented, or never
spoken, may be sufficient evidence ; a look may destroy, an idle
gesture may insure punishment; no innocence can protect, no
circumspection can avoid the jealousy of suspicion ; surrounded
by spies, informers, and all that infamous herd which fatten
under laws like this, the unfortunate stranger will never know
either of the law, of the accusation, or of the judgment until
the moment it is put in execution ; he will detest your tyranny
and fly from a land of desolators, inquisitions, and spies.
48 GREAT AMERICAN DEBATES
This, sir, is a refinement of the detestable contrivance of the
Decemvirs; they hung the tables of their laws so high that
few could read them. A tall man, however, might reach them, a
short one might climb and learn their contents, but here the law
is equally inaccessible to high and low. Safely concealed in the
breast of its author, no industry or caution can penetrate this
recess and obtain a knowledge of its provisions; nor, even if
they could, as the rule is not permanent, would it at all avail.
Having shown that this act is at war with the fundamental
principles of our Government, I might stop here in the certain
hope of its rejection. But I can do no more ; unless we are re
solved to pervert the meaning of terms, I can show that the Con
stitution has endeavored to "make its surety doubly sure, and
take a bond of fate/' by several express prohibitions of meas
ures like that you now contemplate. One of these is contained
in the ninth section of the first article ; it is at the head of the
articles which restrict the powers of Congress, and declares * ' that
the emigration or importation of such persons as any of the
States shall think proper to admit, shall not be prohibited prior
to the year 1808. " Now, sir, where is the difference between
a power to prevent the arrival of aliens and a power to send
them away as soon as they shall arrive ? To me they appear pre
cisely the same. The Constitution expressly says that Congress
shall not do this, and yet Congress are about to delegate this
prohibited power and say that the President may exercise it as
often as pleasure may direct.
I am informed that an answer has been attempted to this
argument by saying that the article, though it speaks of "per
sons," only relates to slaves. But a conclusive reply to this
answer may be drawn from the words of the section ; it speaks
of migration and importation. If it relates only to slaves "im
portation" would have been sufficient; but how can the other
word apply to slaves? Migration is a voluntary change of a
country; but who ever heard of a migration of slaves? The
truth is both words have their appropriate meaning, and were
intended to secure the interests of different quarters of the
Union. The Middle States wished to secure themselves against
any laws that might impede the emigration of settlers. The
Southern States did not like to be prohibited in the importa
tion of slaves; and so jealous were they of this provision that
the fifth article was introduced to declare that the Constitution
should not be amended so as to do it away.
But, even admit, said Mr. L., the absurdity that the word
"migration" has no meaning, or one foreign to its usual accepta-
THE ALIEN LAWS 49
tion, and that the article relates only to slaves. Even this sacri
fice of common sense will not help gentlemen out of their dilem
ma ; slaves probably always, but certainly on their first importa
tion, are aliens; many people think they are always " dangerous
to the peace and safety of the United States ! " If the President
should be of this opinion, he not only can, but, by the terms of
this law, is obliged to, order them off; for the act creates an
obligation on him to send away all such aliens as he may judge
dangerous to the peace or safety of the United States. Thus,
according to the most favorable construction, every proprietor
of this species of property holds at the will and pleasure of the
President — and this, too, in defiance of the only article of the
Constitution that is declared to be unalterable. But, let us, sir,
for a moment imagine, if we can, that the States intended to
restrict the general Government from preventing the arrival
of persons whom they were yet willing to suffer that general
Government to ship off as soon as they should arrive ; grant all
this and they will be as far from establishing the constitutionality
of the bill as they were at the first moment it was proposed ; for,
in the third article, it is provided that all "judicial power shall
be vested in the Supreme and Inferior Courts, that the trial of
all crimes shall be by jury," except in case of impeachment;
and, in the seventh and eighth amendments,1 this provision is
repeated and enforced by others which declare that "no man
shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment of a grand jury"; that "in all
criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law ; and to be
informed of the nature and cause of the accusation ; to be con
fronted with the witnesses against him ; to have compulsory proc
ess for obtaining witness in his favor, and to have the assistance
of counsel for his defence." Now, sir, what minute article in
these several provisions of the Constitution is there that is not
violated by this bill? All the bulwarks which it opposed to en
croachments fall before personal liberty, fall before this engine
of oppression.
Judiciary power is taken from courts and given to the Exec
utive, the previous safeguard of a presentment by a grand in
quest is removed; the trial by jury is abolished; the "public
trial ' ' required by the Constitution is changed into a secret and
worse than inquisitorial tribunal; instead of giving "informa-
1Now the fifth and sixth.
VII— 4
50 GREAT AMERICAN DEBATES
tion on the nature and cause of the accusation," the criminal,
ignorant of his offence and the danger to which he is exposed,
never hears of either until the judgment is passed and the sen
tence is executed; instead of being "confronted with his accus
ers " he is kept alike ignorant of their names and their existence ;
and even the forms of trial being dispensed with, it would be a
mockery to talk of ' ' proofs for witnesses,' ' or the * * assistance of
counsel for defence ' ' — thus are all the barriers which the wisdom
and humanity of our country had placed between accused in
nocence and oppressive power at once forced and broken down.
Not a vestige even of their form remains. No indictment; no
jury ; no trial ; no public procedure ; no statement of the accusa
tion; no examination of the witnesses in its support; no coun
sel for defence; all is darkness, silence, mystery, and suspicion.
But, as if this were not enough, the unfortunate victims of this
law are told in the next section that if they can convince the
President that his suspicions are unfounded he may, if he pleases,
give them a license to stay ; but, how remove his suspicions, when
they know not on what act they were founded? Miserable
mockery of justice ! appoint an arbitrary judge armed with leg
islative and executive powers added to his own ! let him condemn
the unheard, the unaccused object of his suspicion; and, then, to
cover the injustice of the scene, gravely tell him, you ought not
to complain — you need only disprove facts that you have never
heard — remove suspicions that have never been communicated
to you; it will be easy to convince your judge, whom you shall
not approach, that he is tyrannical and unjust; and, having
done this, we give him the power he had before, to pardon you, if
he pleases.
So obviously do the constitutional objections present them
selves that their existence cannot be denied, and two wretched
subterfuges are resorted to to remove them out of sight. First,
it is said, the bill does not contemplate the punishment of any
crime ; and, therefore, the provisions in the Constitution relative
to criminal proceedings and judiciary powers do not apply. But
have the gentlemen who reason thus read the bill; or is every
thing forgotten in our zealous hurry to pass it? What are the
offences upon which it is to operate? Not only the offence of
being "suspected of being dangerous to the peace and safety of
the United States," but also that of being "concerned in any
treasonable or secret machinations against the Government
thereof." And this, we are told, is no crime! a treasonable
machination against the Government is not the subject of crim
inal jurisprudence ! Good Heaven ! to what absurdities does an
THE ALIEN LAWS 51
overzealous attachment to particular measures lead us! In
order to punish a particular act we are forced to say that treason
is no crime, and plotting against our Government is no offence !
And, to support this fine hypothesis, we are obliged to plunge
deeper in absurdity and say that, as the acts spoken of in the
bill are no crimes, so the penalty contained in it is no punish
ment, it is only a prevention ; that is to say, we invite strangers
to come among us; we declare solemnly that Government shall
not prevent them ; we entice them over by the delusive prospect
of advantage; in many parts of the Union we permit them to
hold lands, and give them other advantages, while they are wait
ing for the period at which we have promised a full participa
tion of all our rights. An unfortunate stranger, disgusted with
tyranny at home, thinks he shall find freedom here; he accepts
our conditions ; he puts faith in our promises ; he vests his whole
property in our hands; he has dissolved his former connections,
and made your country his own. But, while he is patiently
waiting the expiration of the period that is to crown the work,
and entitle him to all the rights of a citizen, the tale of a do
mestic spy, or the calumny of a secret enemy, draws on him the
suspicions of the President, and, unheard, he is ordered to quit
the spot which he selected for his retreat, the country which he
had chosen for his own, perhaps the family which was his only
consolation in life, he is ordered to retire to a country whose
government, irritated by his renunciation of its authority, will
receive only to punish him ; and all this, we are told, is no pun
ishment.
Again, we are told that the constitutional compact was made
between citizens only, and that, therefore, its provisions were not
intended to extend to aliens, and that this, acting only on them,
is, therefore, not forbidden by the Constitution. But, unfortu
nately, neither common law, common justice, nor the practice of
any civilized nation will permit this distinction. It is an ac
knowledged principle of the common law, the authority of which
is established here, that alien friends (and permit me to observe
that they are such only whom we contemplate in this bill, for we
have another before us to send off alien enemies) , residing among
us, are entitled to the protection of our laws, and that during
their residence they owe a temporary allegiance to our Govern
ment. If they are accused of violating this allegiance the same
laws which interpose in the case of a citizen must determine the
truth of the accusation, and if found guilty they are liable to the
same punishment. This rule is consonant with the principles of
common justice, for who would ever resort to another country if
52 GREAT AMERICAN DEBATES
he alone was marked out as the object of arbitrary power? It
is equally unfortunate, too, for this argument that the Constitu
tion expressly excludes any idea of this distinction ; it speaks of
all "judicial power," "all trials for crimes," all "criminal
prosecutions," all "persons accused." No distinction between
citizen and alien, between high or low, friends or opposers to the
executive power, republican and royalist. All are entitled to the
same equal distribution of justice, to the same humane provision
to protect their innocence ; all are liable to the same punishment
that awaits their guilt. How comes it, too, if these constitutional
provisions were intended for the safety of the citizen only, that
our courts uniformly extend them all, and that we never hear it
inquired whether the accused is a citizen, before we give him a
public trial by jury ?
I have seen measures carried in this House which I thought
militated against the spirit of the Constitution ; but never before
have I been witness to so open, so wanton, and undisguised an
attack. I have now done, sir, with the act, and come to consider
the consequences of its operation.
One of the most serious has been anticipated, when I de
scribed the blow it would give to the Constitution of our country.
We should cautiously beware of the first act of violation. Habit
uated to overleap its bounds, we become familiarized to the guilt,
and disregard the danger of a second offence, until, proceeding
from one authorized act to another, we at length throw off all
restraint which our Constitution has imposed; and very soon
not even the semblance of its form will remain.
But if, regardless of our duty as citizens, and our solemn
obligation as representatives; regardless of the rights of our
constituents ; regardless of every sanction, human and divine ; if
we are ready to violate the Constitution we have sworn to de
fend — win the people submit to our unauthorized acts ? Will the
States sanction our usurped power ? Sir, they ought not to sub
mit; they would deserve the chains which these measures are
forging for them, if they did not resist. For let no man vainly
imagine that the evil is to stop here, that a few unprotected
aliens only are to be affected by this inquisitorial power. The
same arguments which enforce those provisions against aliens
apply with equal strength to enacting them in the case of citi
zens. Unless we can believe that treasonable machinations, and
the other offences described in the bill are not "crimes"; that an
alien is not a "person"; and that one charged with treasonable
practices is not "accused"; unless we can believe all this, in
contradiction to our understanding, to received opinions, and the
THE ALIEN LAWS 53
uniform practice of our courts, we must allow that all these pro
visions extend equally to aliens and natives, and that the citizen
has no other security for his personal safety than is extended to
the stranger who is within his gates. If, therefore, this security
is violated in one instance, what pledge have we that it will not
in the other ? The same plea of necessity will justify both. Either
the offences described in the act are crimes, or they are not. If
they are, then all the humane provisions of the Constitution
forbid the mode of preventing them, or punishing their doers,
equally as relates to aliens and citizens. If they are not crimes,
then the citizen has no more safety by the Constitution than the
alien has; for all those provisions apply only to crimes. So that,
in either event, the citizen has the same reason to expect a simi
lar law to the one now before you; which subjects his person to
the uncontrolled despotism of a single man. You have already
been told of plots and conspiracies ; and all the frightful images
that were necessary to keep up the present system of terror and
alarm were presented to you. But who were implicated by these
dark hints — these mysterious allusions? They were our own
citizens, sir, not aliens. If there is then any necessity for the
system now proposed it is more necessary to be enforced against
our own citizens than against strangers; and I have no doubt,
that either in this or some other shape this will be attempted.
I now ask, sir, whether the people of America are prepared for
this ? Whether they are willing to part with all the means which
the wisdom of their ancestors discovered, and their own caution
so lately adopted, to secure their own persons? Whether they
are ready to submit to imprisonment or exile whenever suspicion,
calumny, or vengeance shall mark them for ruin ? Are they base
enough to be prepared for this? No, sir; they will, I repeat it,
they will resist this tyrannic system ; the people will oppose it —
the States will not submit to its operation. They ought not to
acquiesce, and I pray to God they never may.
My opinions, sir, on this subject are explicit, and I wish they
may be known ; they are that, whenever our laws manifestly in
fringe the Constitution under which they were made, the people
ought not to hesitate which they should obey. If we exceed our
powers we become tyrants, and our acts have no effect. Thus,
sir, one of the first effects of measures such as this, if they be not
acquiesced in, will be disaffection among the States, and opposi
tion among the people to your Government — tumults, violations,
and a recurrence to first revolutionary principles. If they are
submitted to, consequences will be worse. After such manifest
violation of the principles of our Constitution the form will not
54 GREAT AMERICAN DEBATES
long be sacred; presently, every vestige of it will be lost and
swallowed up in the gulf of despotism. But, should the evil pro
ceed no further than the execution of the present law, what a
fearful picture will our country present ! The system of espion
age being thus established, the country will swarm with inform
ers, spies, delators, and all that odious reptile tribe that breed in
the sunshine of despotic power; that suck the blood of the un
fortunate, and creep into the bosom of sleeping innocence, only
to awake it with a burning wound. The hours of the most un
suspecting confidence, the intimacies of friendship, or the re
cesses of domestic retirement afford no security. The compan
ion whom you must trust, the friend in whom you must confide,
the domestic who waits in your chamber are all tempted to be
tray your imprudence or unguarded follies ; to misrepresent your
words; to convey them, distorted by calumny, to the secret tri
bunal where jealousy presides — where fear officiates as accuser,
and suspicion is the only evidence that is heard.
These, bad as they are, are not the only ill consequences of
these measures. Among them we may reckon the loss of wealth,
of population, and of commerce. Gentlemen who support the
bill seemed to be aware of this when, yesterday, they introduced
a clause to secure the property of those who might be ordered
to go off. They should have foreseen the consequences of the
step they have been taking. It is now too late to discover that
large sums are drawn from the banks, and that a great capital is
taken from commerce. It is ridiculous, even, to observe the so
licitude they show to retain the wealth of these dangerous men,
whose persons they are so eager to get rid of. If they wish to
retain it, it must be by giving them security to their persons, and
assuring them that, while they respect the laws, the laws will
protect them from arbitrary power. It must be, in short, by re
jecting the bill on your table. I might mention many other
inferior considerations; but I ought, sir, rather to entreat the
pardon of the House for having touched on this topic, to which,
compared with the breach of our Constitution, and the establish
ment of arbitrary power, every other topic is trifling. Argu
ments of convenience sink into nothing; the preservation of
wealth, the interest of commerce, however weighty on other oc
casions, here lose their importance. When the fundamental
principles of freedom are in danger we are tempted to borrow
the impressive language of a foreign speaker, and exclaim,
"Perish our commerce, let our Constitution live!" Perish our
riches, let our freedom live ! — this, sir, would be the sentiment of
every American were the alternative between submission and
THE ALIEN LAWS 55
wealth. But here, sir, it is proposed to destroy our wealth in
order to ruin our commerce — not in order to preserve our -Con
stitution, but to break it — not to secure our freedom, but to
abandon it.
I have now done, sir; but, before I sit down, let me entreat
gentlemen seriously to reflect before they pronounce the decisive
vote that gives the first open stab to the principles of our Gov
ernment. Our mistaken zeal, like that of the patriarch of old,
has bound one victim ; it lies at the foot of the altar. A sacrifice
of the first-born offspring of freedom is proposed by those who
gave it birth. The hand is already raised to strike, and nothing,
I fear, but the voice of Heaven can arrest the impious blow.
Let not gentlemen flatter themselves that the fervor of the
moment can make the people insensible to these aggressions. It is
an honest, noble warmth, produced by an indignant sense of in
jury. It will never, I trust, be extinct while there is a proper
cause to excite. But the people of America, sir, though watchful
against foreign aggression, are not careless of domestic encroach
ment; they are as jealous, sir, of their liberties at home as of the
power and prosperity of their country abroad; they will awake
to a sense of their danger. Do not let us flatter ourselves, then,
that these measures will be unobserved or disregarded. Do not
let us be told, sir, that we excite a fervor against foreign aggres
sion only to establish tyranny at home ; that, like the arch traitor,
we cry "Hail Columbia!" at the moment we are betraying her
to destruction; that we sing out "Happy land!" when we are
plunging it in ruin or disgrace ; and that we are absurd enough
to call ourselves "free and enlightened," while we advocate prin
ciples that would have disgraced the age of Gothic barbarity,
and establish a code compared to which the ordeal is wise, and
the trial by battle is merciful and just.
The question was put on the passage of the bill, and
on the yeas and nays being taken there were 46 votes for
it and 40 against it.
No prosecutions took place under the act.
CHAPTER III
THE SEDITION LAW
The Senate Passes a Law against Seditious Utterances and Publications —
It Is Debated in the House: in Favor, John Allen [Ky.], Robert G.
Harper [S. C.], Harrison Gray Otis [Mass.], and Samuel W. Dana
[Conn.] ; Opposed, John Nicholas [Va.], Edward Livingston [N. Y.],
Nathaniel Macon [N. C.], Joseph McDowell [N. C.], and Albert Gal-
latin [Pa.] — It Is Passed with Amendments — Professor Alexander
Johnston on the Sedition Law.
ON June 26, 1798, the bill against seditious prac
tices, which Mr. Harper in the preceding debate
had intimated would be brought forward, was
introduced in the Senate by Mr. Lloyd, of Maryland. It
was passed on July 4 by a vote of 18 to 6, and on the 5th
was introduced in the House. It provided that persons
conspiring to oppose any measure of the Government,
or to impede its operation, or to intimidate a Federal
officer from exercising his trust, should be punished by
fine and imprisonment. Any person who, by writing,
speaking, or printing should threaten a Federal officer
with damage to his character, or should incite, whether
successfully or not, an insurrection or riot, was to be
fined a sum not exceeding $5,000 and imprisoned for a
term not less than six months nor exceeding five years.
If his offence was traducing Congress, the President, or
the Federal judiciary in particular by imputing motives
hostile to the Constitution, he was to be fined a sum not
exceeding $2,000 and be imprisoned for not more than
two years. The bill was debated until July 10, when it
was passed by a vote of 44 to 41.
The chief speakers in favor of the bill were: John
Allen [Ky.], Robert G. Harper [S. C.], Harrison Gray
Otis [Mass.], and Samuel W. Dana [Conn.] ; its leading
.56
THE SEDITION LAW 57
opponents were: John Nicholas [Va.], Edward Living
ston [N. Y.], Nathaniel Macon [N. C.], Joseph McDowell
[N. C.], and Albert Gallatin [Pa.].
ON THE SEDITION ACT
HOUSE OF REPRESENTATIVES, JULY 5-JuLY 10, 1798
MR. LIVINGSTON moved to reject the bill.
MR. ALLEN. — I hope this bill will not be rejected. If ever
there was a nation which required a law of this kind it is this.
Let gentlemen look at certain papers printed in this city and
elsewhere and ask themselves whether an unwarrantable and
dangerous combination does not exist to overturn and ruin the
Government by publishing the most shameless falsehoods against
the Representatives of the people of all denominations, that they
are hostile to free governments and genuine liberty, and of
course to the welfare of this country ; that they ought, therefore,
to be displaced, and that the people ought to raise an insurrec
tion against the Government.
I say, sir, a combination, a conspiracy against the Constitu
tion, the Government, the peace and safety of this country, is
formed, and is in full operation. It embraces members of all
classes; the Representative of the people on this floor, the wild
and visionary theorist in the bloody philosophy of the day, the
learned and ignorant. Permit me to read a paragraph from
The Time-Piece, a paper printed in New York :
"When such a character attempts by antiquated and exploded sophistry,
by Jesuitical arguments, to extinguish the sentiment of liberty, 'tis fit the
mask should be torn off from this meaner species of aristocracy than his
tory has condescended to record; where a person without patriotism, with
out philosophy, without a taste for the fine arts, building his pretensions
on a gross and indigested compilation of statutes and precedents, is jostled
into the Chief Magistracy by the ominous combination of old Tories with
old opinions, and old Whigs with new, 'tis fit this mock monarch, with
his court, composed of Tories and speculators, should pass in review before
the good sense of the world. Monarchies are seen only with indignation
and concern; at sight of these terrible establishments, fears accompany the
execrations of mankind; but when the champion of the well-born, with
hia serene court, is seen soliciting and answering addresses, and pro
nouncing anathemas against France, it shall be my fault if other emotions
be not excited; if to tears and execrations be not added derision and
contempt."
Gentlemen contend for the liberty of opinions and of the
press. Let me ask them whether they seriously think the liberty
of the press authorizes such publications?
58 GREAT AMERICAN DEBATES
If this be not a conspiracy against Government and people, I
know not what to understand from the ' ' threat of tears, execra
tions, derision, and contempt." Because the Constitution guar
antees the right of expressing our opinions, and the freedom of
the press, am I at liberty falsely to call you a thief, a murderer,
an atheist? Because I have the liberty of locomotion, of going
where I please, have I a right to ride over the footman in the
path ? The freedom of the press and opinions was never under
stood to give the right of publishing falsehoods and slanders, nor
of exciting sedition, insurrection, and slaughter, with impunity.
A man was always answerable for the malicious publication of
falsehood ; and what more does this bill require ?
In the Aurora, of last Tuesday, is this paragraph :
t( Where a law shall have been passed in violation of the Constitution,
making it criminal to expose the crimes, the official vices or abuses, or the
attempts of men in power to usurp a despotic authority, is there any alter
native between an abandonment of the Constitution and resistance?"
The gentleman [Mr. Livingston] makes his proclamation of
war on the Government in the House on Monday, and this in
famous printer [Bache] follows it up with the tocsin of insur
rection on Tuesday. He declares what is unconstitutional, and
then invites the people to "resistance." This is an awful, hor
rible example of "the liberty of opinion and freedom of the
press." Can gentlemen hear these things and lie quietly on
their pillows ? Are we to see all these acts practiced against the
repose of our country, and remain passive ? Are we bound hand
and foot that we must be witnesses of these deadly thrusts at our
liberty? Are we to be the unresisting spectators of these exer
tions to destroy all that we hold dear ? Are these approaches to
revolution and Jacobinic domination to be observed with the eye
of meek submission ? No, sir, they are indeed terrible ; they are
calculated to freeze the very blood in our veins. Such liberty
of the press and of opinion is calculated to destroy all confidence
between man and man; it leads to a dissolution of every bond
of union ; it cuts asunder every ligament that unites man to his
family, man to his neighbor, man to society, and to Government.
God deliver us from such liberty, the liberty of vomiting on the
public floods of falsehood and hatred to everything sacred, hu
man, and divine! If any gentleman doubts the effects of such
a liberty let me direct his attention across the water ; it has there
made slaves of thirty millions of men.
At the commencement of the Revolution in France those loud
and enthusiastic advocates for liberty and equality took special
THE SEDITION LAW 59
care to occupy and command all the presses in the nation ; they
well knew the powerful influence to be obtained on the public
mind by that engine; its operations are on the poor, the igno
rant, the passionate, and the vicious ; over all these classes of men
the freedom of the press shed its baneful effects, and they all
became the tools of faction and ambition, and the virtuous, the
pacific, and the rich were their victims. The Jacobins of our
country, too, sir, are determined to preserve in their hands the
CONGRESSIONAL PUGILISTS
"The Era of Bad Feelings" (1798)
From the collection of the New York Public Library
same weapon ; it is our business to wrest it from them. Hence
this motion so suddenly made, and so violently supported by the
mover, to reject this bill without even suffering it to have a sec
ond reading; hence this alarm for the safety of "the freedom
of speech and of the press."
I wish there were no other species of writings which aim at
the overthrow of this Government, and calculated to excite the
deeds of death. But, sir, members of this body are in the habit
of writing to their constituents things which they cannot justify.
The committee will pardon me for reading a part of one which
appeared in the Aurora a few days ago. It is entitled,
60 GREAT AMERICAN DEBATES
1 ' INTERESTING LETTER FROM A MEMBER OF CONGRESS FROM VIRGINIA
TO His CONSTITUENTS."
After many comparisons of our Government with that of
England, the learned writer says :
"Nor are we left altogether to conjectural events, arising out of a
comparison of the general structure of the Government of England with
that of the United States; there are special facts in our own affairs that
evidently imply a tendency to similar abuses in the conduct of our govern
ment.
"The public debt has been studiously augmented and funded, accord
ing to the mystery and intricacy of English finances; we have been an
nually familiarized to the system of loans and funds; and we have a bank
connected with government in its being and in its transactions. The nature
of these institutions, and their political effects, already discernible in this
country, and brought to full form and maturity in England, plainly prove
their great fitness and agency in producing a dangerous preponderance of
executive power; the Executive is regularly supported by a party in both
Houses of Congress on every questionable case respecting its powers or its
projects for expense," &c.
A Representative of the people has committed to him a trust
of the highest nature; his obligations are of the most solemn
kind; an awful responsibility rests upon him to deal with his
constituents in the sincerity of his heart. How could a member
of this House seriously inform his constituents that ' * the public
debt has been studiously augmented ' ' ? He knew the reverse to
be true; how he could say anything else this letter contains I
cannot imagine. His object must be to inflame his constituents
against the Government, though at the expense of all truth.
If these things are true ; if we have so betrayed the interests
of our constituents ; if we are so seeking to bring a despotism on
this country, we ought to be hurled from our seats, and give
place to better men ; we ought to be hurled to that punishment
which would most justly await us. No gentleman believes them,
however ; no gentleman believes that every sense of moral obliga
tion is set at naught in this House, and that we forget all that
we owe to our constituents. Such representations are outrages
on the national authority, which ought not to be suffered ; and I
have no doubt that Congress have power to remedy the evil. If
it be determined that we have not this power the people will
certainly vest it in the Congress, for no government can exist
without it; it is inherent in every government, because it is
necessary to its preservation.
MR. HARPER said that he had often heard in this place, and
elsewhere, harangues on the liberty of the press, as if it were to
swallow up all other liberties ; as if all law and reason, and every
THE SEDITION LAW 61
right, human and divine, were to fall prostrate before the lib
erty of the press; whereas, the true meaning of it is no more
than that a man shall be at liberty to print what he pleases, pro
vided he does not offend against the laws, and not that no law
shall be passed to regulate this liberty of the press.
The rational liberty of the press will not be restricted by a
well-defined law, provided persons have a fair trial by jury;
but that liberty of the press which those who desire, who wish to
overturn society, and trample upon everything not their own,
ought not to be allowed, either in speaking or writing, in any
country.
While this abuse was confined to certain newspapers in the
United States, it excited in him no alarm ; but, when he heard a
gentleman on the floor of this House, whose character and con
nections gave him weight with the people, pronouncing an in
vective against the Government, and calling upon the people to
rise against the law, the business put on a very serious appear
ance; he thought so, not because he should wish to have that
gentleman muzzled (for he knew he had the liberty of uttering
as much treason as he pleased, and that, if his own sense of pro
priety and decorum was not sufficient to check him, there was
no other check upon him), but because this speech may have a
very different effect from the filthy streams of certain newspa
pers ; it may gain a credit with the community, and produce con
sequences which all former abuse has failed to do. It is time,
therefore, for the Government to take alarm; the long forbear
ance which it has shown ought to come to an end, since all its
acts are represented in the vilest and foulest colors; and now
they are sanctioned by the assertions of a person high in respec
tability (he meant as to his situation in life), and a law ought
to pass to prevent such invitations as had been given to the
people from producing their intended effects. It was for this
reason that he wished a law to pass to punish treasonable and
seditious writings.
MB. NICHOLAS said: If the declarations of the gentlemen
from Connecticut and South Carolina were attended to it would
be found they are most afraid of the speeches and letters of gen
tlemen in this House. They acknowledge, however, they cannot
prevent members from speaking what they please here. What,
then, is their aim ? Do they mean to prevent the publication of
their sentiments to their constituents and to the world ? If this
was not their intention he could not tell what it was ?
There was one general view of this subject, which Mr. N.
took to be the most momentous that this country ever saw. He
62 GREAT AMERICAN DEBATES
was ready to go with gentlemen into measures for affording a
liberal support to the war, which it appears must be gone into ;
but he was not ready to create a domestic tyranny. The people
of this country are competent judges of their own interests, and
he was desirous that the press should remain perfectly free to
give them every information relative to them; and to restrict it
would be to create a suspicion that there is something in our
measures which ought to be kept from the light. It was striking
at the root of free republican government to restrict the use of
speaking and writing.
MR. LIVINGSTON said, after receiving the chastisement of the
gentleman from Connecticut on one cheek, he, like a good Chris
tian, had turned the other to the gentleman from South Caro
lina, and received the stripes of both. He expressed his ac
knowledgments to these gentlemen, however, if not for their
chastisement, for the insight which they have given the House
into this bill. They have said its design is not only to restrict
the liberty of the press, which is secured by the Constitution,
but the liberty of speech on this floor. The gentleman from
South Carolina did not say explicitly that he wished this; but
he said he was regardless of what was said in the public papers,
either of private or personal slander, or of a slander on the Gov
ernment, until he heard a certain speech delivered in this House ;
and, though he said he did not intend to restrict the liberty of
speech in this House, he must have had something of the kind in
view. [Mr. Harper said it was not his intention to restrict the
freedom of speech on that floor, but the consequences of it out
of doors.] Then, said Mr. L., he will either restrict the members
from speaking, or, in some way, prevent the people from know
ing what has been said. How is this to be done ? By shackling
newspapers, and preventing that free communication of senti
ment which has heretofore been expressed on public topics.
Mr. L. avowed with pride the sentiments which he had ut
tered in the House, and to which gentlemen objected. He could
not see how acts made contrary to the Constitution could be
binding upon the people; unless gentlemen say Congress may
act in contravention to the Constitution. [Mr. Otis asked who
were to be the judges?] Mr. L. answered, the people of the
United States. We, said he, are their servants ; when we exceed
our powers, we become their tyrants!
This is one object of complaint; the other is against news
paper publications. The gentleman from South Carolina has
said that, provided the law be clear and well defined, and the
trial by jury be preserved, he knew of no law which could in-
THE SEDITION LAW 63
fringe the liberty of the press. If this be true, Congress might
restrict all printing at once. We have, said he, nothing to do
but to make the law precise, and then we may forbid a news
paper to be printed, and make it death for any man to at
tempt it !
If this be the extent to which this bill goes it is not only an
abridgment of the liberty of the press, which the Constitution
has said shall not be abridged; but it is a total annihilation of
the press. Were he then to withdraw his motion he should
consider himself guilty of treason; by his consent so un
constitutional a measure should not progress an inch. How
ever unsuccessful he might be, he would oppose it in every
stage.
MR. OTIS believed there was nothing in the bill contrary to
the common law of the several States of the Union.
MR. MACON had no doubt on his mind that this bill was in
direct opposition to the Constitution ; and that if a law like this
was passed, to abridge the liberty of the press, Congress would
have the same right to pass a law making an establishment of
religion, or to prohibit its free exercise, as all are contained in
the same clause of the Constitution ; and, if it be violated in one
respect, it may as well be violated in others. Several laws had
been passed which he thought violated the spirit, but none be
fore this which directly violated the letter of the Constitution;
and, if this bill was passed, he should hardly think it worth
while in future to allege against any measure that it is in direct
contradiction to the Constitution.
Laws of restraint, like this, Mr. M. said, always operate in a
contrary direction from that which they were intended to take.
The people suspect something is not right when free discussion
is feared by government. They know that truth is not afraid of
investigation.
If, said Mr. M., the people are so dissatisfied with govern
ment as some gentlemen would have it believed, but which he
did not credit, by passing a law like the present you will force
them to combine together; they will establish corresponding
societies throughout the Union, and communications will be
made in secret, instead of publicly, as had been the case in other
countries. He believed the people might be as safely trusted
with free discussion as they whom they have chosen to do their
business.
The gentleman from Massachusetts [Mr. Otis] has said this
bill is conformable to the common law. He knew persons might
be prosecuted for a libel under the State governments; but if
64 GREAT AMERICAN DEBATES
this power exist in full force at present, what necessity can
there be for this bill ?
Much had been said about a certain paper printed in this
city. He believed if anything appeared which was unfounded in
that paper it would always be contradicted in another. It is
well known there are papers on both sides of the question, and
if you say you have read one you are generally asked if you
have seen the other?
MR. MCDOWELL was in hopes that, when the third article *
of the amendments to the Constitution had been read, the un
constitutionally of this bill would have been so evident that it
would have been rejected without debate.
MR. GALLATIN said: The manner in which the principle of
the bill had been supported was perhaps more extraordinary
still than the bill itself. The gentleman from Connecticut [Mr.
Allen] , in order to prove the existence of a combination against
the Constitution and Government, had communicated to the
House — what? a number of newspaper paragraphs; and even
most of those were such as would not be punishable by the bill
as it now stands. The object of that gentleman in wishing a bill
of this nature to pass extended far beyond the intention of the
Senate who had sent down this bill ; far beyond, he would ven
ture to say, the idea of any other member upon this floor, besides
himself. His idea was to punish men for stating facts which he
happened to disbelieve, or for enacting and avowing opinions,
not criminal, but perhaps erroneous.
The gentleman from Connecticut had also quoted an extract
of a letter said to be written by a member of Congress from Vir
ginia, and published in last Saturday's Aurora. The style and
composition of that letter did the highest honor to its writer.
It contained more information and more sense, and gave more
proofs of a sound understanding and strong mind, than ever the
gentleman from Connecticut had displayed, or could display, on
this floor. He was altogether at a loss to know what was crimi
nal in it, though he might easily see why it was obnoxious. Was
it erroneous or criminal to say that debts and taxes were the
ruinous consequences of war? Or that some members in both
Houses of Congress uniformly voted in favor of an extension of
the powers of the Executive, and of every proposed expenditure
of money? Was it not true? Gentlemen of that description
avow that, in their opinion, the executive is the weakest branch
of government ; and they act upon the ostensible principle that,
on that account, its influence and powers must be increased.
1Now the first.
THE SEDITION LAW 65
Look at the laws passed during this session. Look at the alien
bill, at the provisional army bill, look at the prodigious influence
acquired by so many new offices, and then deny that the powers
of the Executive have not been greatly increased. As to the in
creased rate of expenditure, and the propensity of these gentle
men to vote money, they would not themselves deny it. Was it
criminal to say that the Executive is supported by a party, when
gentlemen declared that it must be supported by a party ? When
the doctrine had been avowed on this floor that men of a certain
political opinion alone ought to be appointed to offices ; and when
the Executive had now adopted and carried into practice that
doctrine in its fullest extent ?
Was the gentleman afraid, or, rather, was Administration
afraid, that error could not be successfully opposed by truth?
The American Government had heretofore subsisted, it had ac
quired strength, it had grown on the affection of the people, it
had been fully supported without the assistance of laws similar
to the bill now on the table. It had been able to repel opposi
tion by the single weapon of argument. And at present, when
out of ten presses in the country nine were employed on the side
of Administration, such is their want of confidence in the purity
of their own views and motives that they even fear the unequal
contest, and require the help of force in order to suppress the
limited circulation of the opinions of those who did not approve
all their measures. One of the paragraphs says that it will soon
become a question whether there will be more liberty at Phila
delphia or Constantinople. The gentleman from Connecticut
bitterly complains of tliis, as insinuating that some persons in
Government intend to establish a despotic power; and in order
to convince the writer of his error that gentleman not only sup
ports the bill, but avows principles perfectly calculated to justify .
the assertions contained in the paragraph.
This bill and its supporters suppose, in fact, that whoever
dislikes the measures of Administration and of a temporary ma
jority in Congress, and shall, either by speaking or writing, ex
press his disapprobation and his want of confidence in the men
now in power, is seditious, is an enemy, not of Administration,
but of the Constitution, and is liable to punishment. That prin
ciple, Mr. G. said, was subversive of the principles of the Con
stitution itself. If you put the press under any restraint in re
spect to the measures of members of Government; if you thus
deprive the people of the means of obtaining information of
their conduct, you in fact render their right of electing nuga
tory ; and this bill must be considered only as a weapon used by
VII— 5
66 GREAT AMERICAN DEBATES
a party now in power, in order to perpetuate their authority and
preserve their present places.
The gentleman from South Carolina [Mr. Harper] had stated
that he did not apprehend any serious mischief from the present
licentiousness of the press until he had heard the speech of a
member from New York [Mr. Livingston] inviting the people to
resist a law of Congress. That gentleman had forgotten that the
bill which he now meant to support could suppress and punish
only that licentiousness of which he declared he was not afraid,
and could not reach speeches of members of Congress, which, by
the Constitution, could not be noticed out of these walls. This
was the first attack made upon a speech delivered in this House,
but what, from the gentleman from South Carolina, he had for
some time expected; for, in his career, after having grossly at
tacked members first for writing circular letters, and then on
account of their private correspondence, the next step must be to
make their speeches the foundation of a sedition law. As to the
speech itself, so far as he had heard the expressions alluded to,
it was not an invitation to the people, or an opinion that the
people should oppose the alien bill itself as unconstitutional ; but
merely a general position that they had a right to resist, and
would resist unconstitutional and oppressive laws. He believed
that doctrine to be strictly correct, and neither seditious nor
treasonable. The opposite doctrines of passive obedience and
non-resistance had long been exploded. America had never re
ceived them. America had asserted the right of resisting un
constitutional laws, and the day we were celebrating yesterday
(4th of July) is a monument of that right. It is a right to which
the people of America may, perhaps, in the course of events be
again obliged to resort. God forbid that we should ever see that
day! But it is above all in the power of Government to avert
such an evil by refraining from unconstitutional and arbitrary
laws.
MR. DANA said: The bill has been condemned as violating
one of the articles adopted as amendments to the Constitution.
Could the framers of the Constitution intend to guarantee, as a
sacred principle, the liberty of lying against the Government?
What do gentlemen understand by "the freedom of speech and
of the press"? Is it a license to injure others or the Govern
ment, by calumnies, with impunity?
Let it be remembered that the uttering of malicious false
hoods, to the injury of the Government, is the offence which it
is now intended to restrain ; for, if what is uttered car. be proved
true, it will not, according to this bill, be punished as libelous.
THE SEDITION LAW 67
What, then, is the rational, the honest, the constitutional idea of
freedom of language or of conduct? Can it be anything more
than the right of uttering and doing what is not injurious to
others? This limitation of doing no injury to the rights of
others undoubtedly belongs to the true character of real liberty.
Indeed can it, in the nature of things, be one of the rights of
freemen to do injury ? For himself, Mr. D. wanted not the lib
erty of calumny or of conspiracy, and was in favor of the prin
ciple of the bill.
The question on rejecting the bill was taken by yeas
and nays — yeas 36, nays 47.
Mr. Harper then offered an amendment to the bill, *
which was intended to obviate the objections against it
upon the score of indefiniteness of mode of determining
the crimes and trying the accused. The amendment pro
vided that trial under the act should take place in the
Federal courts in the State in which it was charged that
the crime had been committed, and be conducted under
the common law of libel and before juries formed accord
ing to the practice of the State.
This amendment was adopted by the casting vote of
the Speaker (Jonathan Dayton, of New Jersey), the vote
having been 40 to 40. The debate was then continued
with special bearing on the new issue injected by the
amendment, namely, the enlargement of the powers
of the Federal judiciary by recognition of its com
mon law jurisdiction in criminal matters, in which
matters the Eepublicans claimed that the State courts
had sole authority save in the cases of crimes expressly
enumerated in the Constitution: treason, counterfeiting
Federal coin or securities, and piracy and other offences
against international law.
MR. NICHOLAS said : It has been the object of all regulations
with respect to the press to destroy the only means by which the
people can examine and become acquainted with the conduct of
persons employed in their Government. If this bill be passed
into a law the people will be deprived of that information on
public measures which they have a right to receive, and which
is the life and support of a free government ; for, if printers are
to be subject to prosecution for every paragraph which appears
in their papers, that the eye of a jealous government can torture
68 GREAT AMERICAN DEBATES
into an offence against this law, and to the heavy penalties here
provided, it cannot be expected that they will exercise that free
dom and spirit which it is desirable should actuate them; espe
cially when they would have to be tried by judges appointed by
the President, and by juries selected by the marshal, who also
receives his appointment from the President, all whose feelings
would, of course, be inclined to commit the offender if possible.
Under such circumstances it must be seen that the printers of
papers would be deterred from printing anything which should
be in the least offensive to a power which might so greatly harass
them. They would not only refrain from publishing anything of
the least questionable nature, but they would be afraid of pub
lishing the truth, as, though true, it might not always be in their
power to establish the truth to the satisfaction of a court of jus
tice. This bill would, therefore, go to the suppression of every
printing press in the country which is not obsequious to the will
of Government.
Mr. N. again asked, what are the bounds which gentlemen
would draw between the liberty and licentiousness of the press?
The Senate had sent them the project of one law which made it
criminal to attribute bad motives to Government, even where the
facts were not questionable; the House had now another project,
which describes a number of other offences, all restricting the use
of the press. The Constitution has not defined the bounds here
spoken of. He had heard something said out of doors on the
subject of common law ; that the offences created by this bill are
offences under it ; but two gentlemen who advocate the bill had
denied that the common law made any offences against the
United States.
MR. HARPER said, if any expression of his was alluded to, he
never said that no common law offence could be committed
against the United States. He had said that there was no com
mon-law jurisdiction in the courts of the United States; but he
believed the common-law doctrine of libels as applicable to the
Government of the United States as any other government.
MR. NICHOLAS hoped there was no necessity for examining
the opinions of the gentleman from South Carolina as to the
common law being part of the law of the United States. He
should like to know how the United States had adopted the com
mon law. He should be glad to know where gentlemen found
an account of their having so adopted it. Do gentlemen suppose
that, in adopting the Constitution, the United States adopted the
common law of all the States, which is so various, that he would
venture to say no man perfectly knew it at the time, nor did he
THE SEDITION LAW 69
believe that any one gentleman who seems in this House to enter
tain that opinion is acquainted with the common law of all the
States. The common law of England has undergone various im
provements and modifications in the several States, which it
could not be supposed would be rejected by the convention who
formed the Constitution in silence. Indeed, it was to him one of
the most absurd ideas imaginable. If the common law was not
adopted by the Constitution, and does not form a part of it,
where is the rule by which to ascertain where the liberty of the
press ends and its licentiousness begins ? If gentlemen say it is
adopted by the Constitution, it must remain unchangeable, and
there could be no authority for passing this law.
And yet, in direct opposition to the clause of the Constitu
tion which says ' ' Congress shall pass no law to abridge the free
dom of the press," Congress is now about to pass such a law.
For it is vain to talk about the licentiousness of the press, the
prohibition is express, ' ' shall pass no law to abridge, ' ' etc.
Mr. N. said he was as sensible as any other gentleman that
some of our printers had abused the liberty of the press, but,
notwithstanding he saw this, he was far from being convinced
of either the propriety or necessity of legislative interference in
the matter. Falsehoods issued from a press are not calculated
to do any lasting mischief. Falsehoods will always depreciate
the press from whence they proceed. He was persuaded that the
publication of one falsehood in a paper would do it more mis
chief than the abuse of its enemies. Every publisher of a news
paper who consults his own interest and respectability will, as
far as he is able to do it, make it a vehicle of correct information.
Mr. N. wished gentlemen, before they gave a final vote on
this bill, to consider its effects ; and, if they did this, he thought
they would consent to stop here. He desired them to reflect on
the nature of our Government; that all its officers are elective,
and that the people have no other means of examining their con
duct but by means of the press, and an unrestrained investiga
tion through it of the conduct of the Government. Indeed, the
heart and life of a free Government is a free press; take away
this, and you take away its main support.
If members of the legislature are charged falsely they are in
as good situations as they could wish to be to refute the charge ;
and it is better, according to their understanding of the matter
(and he owned he concurred with them in opinion), that fifty
slanderers should escape punishment than that a single oppres
sion, with respect to the liberty of the press, should take place.
More mischief would be done to the press by a single act of this
70 GREAT AMERICAN DEBATES
kind than any possible amount of slander could do harm. Mr.
N. concluded by saying that, it having been seen that, in Eng
land, when in the greatest possible state of alarm, there was no
disposition to protect their representative characters against ex
amination in the public prints, he trusted the Representatives
of this free country would not consent to pass laws by which the
free public examination of their own conduct will be prohibited.
MR. OTIS said : The people of the individual States brought
with them as a birthright into this country the common law of
England, upon which all of them have founded their statute law.
If it were not for this common law many crimes which are com
mitted in the United States would go unpunished. No State has
enacted statutes for the punishment of all crimes which may be
committed ; yet in every State he presumed there was a superior
court which claimed cognizance of all offences against good
morals, and which restrained misdemeanors and opposition to
the constituted authorities, under the sanction merely of the
common law. When the people of the United States convened
for the purpose of framing a Federal compact they were all ha
bituated to this common law, to its usages, its maxims, and its
definitions. It had been more or less explicitly recognized in the
constitution of every State, and in that of Maryland it was de
clared to be the law of the land. If, then, we find in an instru
ment digested by men who were all familiarized to the common
law not only that the distribution of power, and the great ob
jects to be provided for, are congenial to that law, but that the
terms and definitions by which those powers are described have
an evident allusion to it, and must otherwise be quite inex
plicable, or at best of a very uncertain meaning, it will be nat
ural to conclude that, in forming the Constitution, they kept in
view the model of the common law, and that a safe recourse may
be had to it in all cases that would otherwise be doubtful. Thus
we shall find that one great end of this compact, as appears in
the preamble, is the establishment of justice, and for this pur
pose a judicial department is erected, whose powers are declared
"to extend to all cases in law and equity, arising under the Con
stitution, the laws of the United States, " etc. Justice, if the
common-law ideas of it are rejected, is susceptible of various
constructions, but agreeably to the principles of that law it
affords redress for every injury, and provides a punishment for
every crime that threatens to disturb the lawful operations of
Government. Again, what is intended by "cases at law and
equity arising under the Constitution, " as distinguished from
cases "arising under the laws of the United States"? What
THE SEDITION LAW 71
other law can be contemplated but common law; what sort of
equity but that legal discretion which has been exercised in Eng
land from time immemorial, and is to be learned from the books
and reports of that country ? If it be answered that these words
comprise civil controversies only, though no reason appears for
this distinction, yet what is to be done with other terms, with
trial, jury, impeachment, etc., for an explanation of all which
the common law alone can furnish a standard ? It has been said
by the gentleman that the Constitution has specified the only
crimes that are cognizable under it; but other crimes had been
made penal at an early period of the government, by express
statute, to which no exception had been taken. For example,
stealing public records, perjury, obstructing the officers of jus
tice, bribery in a judge, and even a contract to give a bribe
(which last was a restraint upon the liberty of writing and speak
ing) were all punishable, and why? Not because they are de
scribed in the Constitution, but because they are crimes against
the United States — because laws against them are necessary to
carry other laws into effect; because they tend to subvert the
Constitution. The same reasons applied to the offences men
tioned in the bill.
MR. OTIS contended that this construction of the Constitution
was abundantly supported by the act for establishing the ju
dicial courts. That act, in describing certain powers of the dis
trict court, contains this remarkable expression: "saving to
suitors in all cases the right of a common-law remedy, where the
common law was competent to give it." He could not tell
whence this competency was derived, unless from the Constitu
tion; nor did he perceive how this competency applied to civil
and not to criminal cases.
It was, therefore, most evident to his mind that the Consti
tution of the United States, prior to the amendments that have
been added to it, secured to the National Government the cog
nizance of all the crimes enumerated in the bill, and it only re
mained to be considered whether those amendments divested it of
this power. The amendment quoted by the gentleman from Vir
ginia is in these words : * ' Congress shall make no law abridging
the freedom of speech and of the press. ' * The terms ' l freedom
of speech and of the press/* he supposed, were a phraseology
perfectly familiar in the jurisprudence of every State, and of a
certain and technical meaning. It was a mode of expression
which we had borrowed from the only country in which it had
been tolerated, and he pledged himself to prove that the con
struction which he should give to those terms should be con-
72 GREAT AMERICAN DEBATES
sonant not only to the laws of that country, but to the laws and
judicial decisions of many of the States composing the Union.
This freedom, said Mr. O., is nothing more than the liberty of
writing, publishing, and speaking one's thoughts, under the con
dition of being answerable to the injured party, whether it be
the Government or an individual, for false, malicious, and
seditious expressions, whether spoken or written; and the lib
erty of the press is merely an exemption from all previous re
straints. In support of this doctrine, he quoted Blackstone's
"Commentaries," under the head of libels, and read an extract
to prove that in England, formerly, the press was subject to a
licenser; and that this restraint was afterward removed, by
which means the freedom of the press was established. He
would not, however, dwell upon the law of England, the author
ity of which it might suit the convenience of gentlemen to ques
tion ; but he would demonstrate that, although in several of the
State constitutions the liberty of speech and of the press were
guarded by the most express and unequivocal language, the leg
islatures and judicial departments of those States had adopted
the definitions of the English law, and provided for the punish
ment of defamatory and seditious libels. [Mr. Otis here cited
laws made by a number of the States.]
In all these instances it is clearly understood that to punish
licentiousness and sedition is not a restraint or abridgment of
the freedom of speech or of the press.
The gentleman from Virginia had inquired how a line could
be drawn between the liberty and licentiousness of the press?
He would inform him that an honest jury was competent to such
a discrimination, they could decide upon the falsehood and
malice of the intention. How, said he, do they draw a line of
discrimination in the case of a forgery of public security ? This
crime is effected through the medium of the press or of the pen.
How can they punish the intent when a man offers a bribe to a
judge, which may be done by words only? These are offences
which the gentlemen would anxiously discountenance. Yet for
gery is only the liberty of the press upon his construction, and
an offer of bribery is merely freedom of speech. Is it not a re
straint upon the freedom of speech that the people in the gallery
are not allowed to join in this debate? Yet this would hardly be
permitted. Why, then, said Mr. O., are gentlemen so feelingly
alive on this subject? Where lies the injury in attempting to
check the progress of calumny and falsehood ? Or how is society /
aided by the gross and monstrous outrages upon truth and honor
and public character and private peace which inundate the coun-
THE SEDITION LAW 73
try? Can there be any necessity of allowing anonymous and
irresponsible accusers to drag before the tribunal of public
opinion magistrates, and men in office, upon false and ground
less charges ? There are sixteen legislatures in the United States,
in which all the measures of Government are open to investiga
tion. There are two Houses of Congress, in which every accusa
tion and suspicion may have free vent, wherein our jealousies
and prejudices may be uttered without restraint, and every man
will still be at liberty to print and speak at pleasure; but he
must be prepared to prove those charges which bring disgrace
upon his fellow-citizens. No reasonable being can desire a
greater latitude than this. But the gentleman from Virginia is
fearful that an impartial jury will not be found in the present
excited state of the public opinion; but if twelve honest men
cannot be found to acquit a libellist he ought to be convicted.
He urges further that, even in Great Britain, Parliament has
never made laws to restrain censorious remarks upon its meas
ures; but, in Great Britain, libels as well against Parliament as
other bodies of men are offences at common law. Neither does
the present bill restrain a free animadversion upon the proceed
ings of Congress or the conduct of its members; it merely pro
hibits calumny and deception.
MR. MACON proceeded to quote the opinions of the leading
members in several of the State conventions, in order to show,
from the opinions of the friends of the Constitution, that it was '
never understood that prosecutions for libels could take place
under the general Government ; but that they must be carried on
in the State courts, as the Constitution gave no power to Con
gress to pass laws on this subject. Not a single member in any
of the conventions gave an opinion to the contrary.
Mr. M. also quoted the opinions of members of Congress at
the time the amendments to the Constitution were adopted, to
prove the same thing, and inquired how it was come to pass,
notwithstanding all the positive opinions which he had quoted to
the contrary, that Congress should now conceive that they have
power to pass laws on this subject? He could himself find no
ground to justify the change.
Gentlemen, Mr. M. said, might call this a harmless bill ; but
however harmless it may be it is a beginning to act upon forbid
den ground, and no one can say to what extent it may hereafter
be carried. He thought this subject of the liberty of the press
was sacred, and ought to be left where the Constitution had left
it. The States have complete power on the subject, and when
Congress legislates it ought to have confidence in the States, as
74 GREAT AMERICAN DEBATES
the States ought also to have confidence in Congress, or our Gov
ernment is gone. This Government depends upon the State leg
islatures for existence. They have only to refuse to elect Sena
tors to Congress, and all is gone. He believed there was nowhere
any complaint of a want of proper laws under the State govern
ments; and though there may not be remedies found for every
grievance in the general Government, what it wants of power
will be found in the State governments, and there can be no
doubt but that power will be duly exercised when necessity calls
for it.
MB. LIVINGSTON said that, notwithstanding that kind of ac
commodating principle which has been set up and reiterated,
that the powers of this Constitution extend to every possible case
— a principle which goes to the destruction of State authorities,
and makes that instrument mean anything or nothing — he should
again venture to engage the attention of the House while he en
deavored to show that this bill is not only contrary to the spirit,
but to the direct letter of the Constitution.
The Constitution declares that "no law shall be passed to
abridge the liberty of speech or of the press. ' ' Let us inquire,
said Mr. L., what was the liberty enjoyed at the time this decla
ration was agreed to, and see whether citizens will enjoy the
same liberty after this law passes that they then enjoyed. Will
gentlemen say that the same liberty of writing and speaking did
not exist then that now exists? If they will not say this, must
they not allow that the Constitution is positive in prohibiting
any change in this respect ? Gentlemen may call this liberty an
evil, if they please ; if it be an evil (which he was far from be
lieving) it is an evil perpetrated by the Constitution.
The Constitution seems to have contemplated cases which
might arise at a future day. It seems to have foreseen that ma
jorities (far be it from him to believe the present majority is of
the number) might be actuated by dispositions hostile to the
Government ; that it might wish to pass laws to suppress the only
means by which its corrupt views might be made known to the
people, and therefore says, no law shall be passed to abridge
the liberty of speech and of the press. This privilege is con
nected with another dear and valuable privilege — the liberty of
conscience. What is liberty of conscience? Gentlemen may to
morrow establish a national religion agreeably to the opinion of
a majority of this House, on the ground of an uniformity of
worship being more consistent with public happiness than a
diversity of worship. The doing of this is not less forbidden
than the act which the House are about to do. But, it is said,
THE SEDITION LAW 75
will you suffer a printer to abuse his fellow-citizens with im
punity, ascribing his conduct to the very worst of motives? Is
no punishment to be inflicted on such a person? Yes. There is
a remedy for offences of this kind in the laws of every State in
the Union. Every man's character is protected by law, and
every man who shall publish a libel on any part of the Govern
ment is liable to punishment. Not, said Mr. L., by laws which
we ourselves have made, but by laws passed by the several
States. And is not this most proper ? Suppose a libel were writ
ten against the President, where is it most probable that such an
offence would receive an impartial trial? In a court, the judges
of which are appointed by the President, by a jury selected by
an officer holding his office at the will of the President, or in a
court independent of any influence whatever? The States are
as much interested in the preservation of the general Govern
ment as we are. We do wrong when we attempt to set up in
terests independent of the States. They are all desirous of pre
serving the Constitution as it now stands; and it is, therefore,
much more probable that justice will be found in a court in
which neither of the parties have influence than in one which is
wholly in the power of the President.
But it is said this Government is liable to suffer abuse of the
worst kind ; the worst motives may be attributed to it, the most
false statements made with respect to its conduct, and no hand
can be held out to protect it. For his own part, he believed
there ought to be no such power. He believed every independent
government was equal to the protection of its private or public
character; but when gentlemen speak of slanders against the
Government, he knew of no such thing. We are charged, for
instance, with passing an unconstitutional act — with violating
our oaths. What answer is it proposed we should make to the
charge? We are not to disprove the fact, and let the public
judge between us, but we are immediately to prosecute the man
who makes the charge. You may, by thus acting, establish error
as soon as truth ; you put them both on the same footing ; you
crush them by force of arms, and not by the force of reason.
This is the same system which heretofore lighted the fires of
Smithfield, and which has produced so much bloodshed and ruin
among mankind.
But even the constitutional objection to this bill, great as it
is, is of small importance, when it is considered in another point
of view. He looked upon it as a link in a chain of events lead
ing to the most serious consequences — events which he had
always opposed and constantly deplored — leading to a practical
76 GREAT AMERICAN DEBATES
change in our Government. Gentlemen may think this is not
so. He had frequently heard them speak of weak and rotten
parts of the system ; they may wish only to strengthen the weak
parts, and cut out the rotten. But, Mr. L. said, he admired the
Constitution in its present form ; he had superadded to this ad
miration the sanction of an oath. Both inclination and duty,
therefore, led him to oppose measures which, in his opinion, went
to a radical change of it.
Many writers have amused themselves, and instructed the
world, by delineating the means by which free governments
gradually become oppressive; and some of them the means by
which free governments become despotisms. He would take the
liberty of reading an extract out of one of the best writings he
had seen on this subject — the best in this view: as it shows how
a government, organized like ours, may come to destruction. He
would barely read the passage, and, if it did not make an impres
sion on the minds of gentlemen, he should despair of saying
anything that would. [Mr. Dana inquired the name of the au
thor.] Mr. Livingston replied the book he alluded to was John
Adams's ''Defence of the American Constitution." While he
read this, he wished it to be recollected that it had been declared
on this floor that none but men of a certain political opinion
would be chosen by the President to office. Mr. L. then read as
follows :
"A few eminent, conspicuous characters will be continued in their
seats in the Sovereign Assembly, from one election to another, whatever
changes are made in the seats around them. By superior art, address, and
opulence; by more splendid birth, reputation, and connections, they will
be able to intrigue with the people, and their leaders out of doors, until
they worm out most of their opposers and introduce their friends. To this
end, they will bestow all offices, contracts, privileges in commerce, and other
emoluments, on the latter, and their connections, and throw every vexation
and disappointment in the way of the former, until they establish such a
system of hopes and fears throughout the State as shall enable them to
carry a majority in every fresh election of the House. The judges will be
appointed by them and their party, and, of consequence, will be obsequious
enough to their inclinations. The whole judicial authority, as well as the
executive, will be employed, perverted, and prostituted to the purposes of
electioneering. No justice will be attainable, nor will innocence or virtue
be safe in the judiciary courts, but for the friends of the prevailing lead
ers. Legal prosecutions will be instituted and carried on against opposers,
to their vexation and ruin; and, as they have the public purse at command,
as well as the executive and judicial power, the public money will be ex
pended in the same way. No favors will be attainable but by those who
will court the ruling demagogues in the House by voting for their friends
and instruments; and pensions and pecuniary rewards and gratifications,
as well as honor and offices of every kind, will be voted to friends and par-
THE SEDITION LAW 77
tisans. The leading minds and most influential characters among the clergy
will be courted, and the views of the youth in this department will be
turned upon those men, and the road to promotion and employment in the
church will be obstructed against such as will not worship the general idol.
Capital characters among the physicians will not be forgotten, and the
means of acquiring reputation in the practice of the healing art will be to
get the State trumpeters on the side of youth. The bar, too, will be made
so subservient that a young gentleman will have no chance to obtain a
character, or clients, but by falling in with the views of the judges and
their creators. Even the theaters and actors and actresses must become
politicians, and convert the public pleasures into engines of popularity
for the governing members of the House. The press, that great barrier
and bulwark of the rights of mankind, when it is protected in its freedom
by law, can now no longer be free; if the authors, writers, and printers
will not accept of the hire that will be offered them, they must submit to
the ruin that will be denounced against them. The presses, with much
secrecy and concealment, will be made the vehicles of calumny against the
minority, and of panegyric and empirical applause of the leaders of the
majority, and no remedy can possibly be obtained. In one word, the whole
system of affairs, and every conceivable motive of hope and fear, will be
employed to promote the private interests of a few, and their obsequious
majority; and there is no remedy but in arms!"
Sad remedy! He hoped the people of this country would
never be forced to have recourse to it. If the fatal tendency of
certain measures be what is here described (and he believed the
representation to be a just one), it behooved us to beware in
time.
Mr. L. would be glad if gentlemen would inform the House
of any good which would be derived from the passage of this bill
— of any evil which it will remedy? If they could not do this,
he further entreated them to think of the evils which it may
produce. He feared it would lessen the confidence of the people
i# the Government. By the addresses which we see pour in
from every quarter it would seem that this confidence is now
possessed, and he hoped Government would be careful not to
lose it. But to judge from addresses alone was but a fallacious
mode of judging. In proof of this Mr. L. referred to Dal-
rymple's ''History of the Reign of James I," which shows that
this monarch was overpowered with the most fulsome addresses,
at a time when the people in general were disaffected to his gov
ernment to the highest degree. This, he said, was a strong his
torical fact, which ought to have its due weight. The political
situation of this country very much resembles that of England
at the time alluded to.
The effect of this bill may be to lift a few men into conse
quence who were never of any before, and to ruin two or three
others; but it will be in vain to attempt to hide the misconduct
78 GREAT AMERICAN DEBATES
of Government from the people. The thing will defeat its own
end. They will, besides, be struck with the flagrant breach
which it makes in the Constitution, compared with which, he
looked upon war, pestilence, and every other calamity as of
trifling consequence. Time may remove these, but of an unfor
giving, dreary despotism who can see the end ? God forbid that
we should ever be called upon to employ our talents to the over
turning of such a government!
MR. GALLATIN observed : The gentleman from Massachusetts
[Mr. Otis] had attempted to prove the constitutionality of the
bill by asserting, in the first place, that the power to punish
libels was originally vested in Congress by the Constitution, and,
in the next place, that the amendment to the Constitution, which
declares that Congress shall not pass any law abridging the lib
erty of the press, had not deprived them of the power originally
given. In order to establish his first position the gentleman had
thought it sufficient to insist that the jurisdiction of the courts
of the United States extended to the punishment of offences at
common law, that is to say, of offences not arising under the
statutes or laws of the Union — an assertion unfounded in itself,
and which, if proven, would not support the point he endeavors
to establish. That assertion was unfounded; for the judicial
authority of those courts is, by the Constitution, declared to ex
tend to cases of admiralty, or affecting public ministers ; to suits
between States, citizens of different States, or foreigners, and to
cases arising under the Constitution, laws, and treaties, made
under the authority of that Constitution; excluding, therefore,
cases not arising under either — cases arising under the common
law. Nor was that gentleman more fortunate in his choice of
arguments when he thought he could derive any proofs in sup
port of the supposed jurisdiction of the Federal courts from the
number of technical expressions in the Constitution — such as
writ of habeas corpus, levying war, etc., which, as he supposed,
recognized the common law. He had there confounded two very
distinct ideas — the principles of the common law, and the juris
diction over cases arising under it. That those principles were
recognized in the cases where the courts had jurisdiction was
not denied ; but such a recognition could by no means extend the
jurisdiction beyond the specific cases defined by the Constitution.
But, had that gentleman succeeded in proving the existence of
the jurisdiction of the Federal courts over offences at common
law, and more particularly over libels, he would thereby have
adduced the strongest argument against the passing of this bill ;
for, if the jurisdiction did exist, where was the necessity of now
THE SEDITION LAW 79
giving it? If the judicial authority of the Federal courts, by
the Constitution, extended to the punishment of libels, it was
unnecessary to pass this law, which, modified as it is, was in
tended by its supporters for the sole purpose of enacting into a
law of the United States the common law of libels. The question
was not whether the courts of the United States had, without
this law, the power to punish libels, but whether, supposing they
had not the power, Congress had that of giving them this juris
diction — whether Congress were vested by the Constitution with
the authority of passing this bill ?
The only clause of the Constitution which can give a color to
the authority now claimed is that which gives Congress authority
to make all laws which shall be necessary and proper for carry
ing into execution the power vested by the Constitution in the
Government of the United States, or in any department or officer
thereof.
But the language here used was strict and precise; it gave
not a vague power, arbitrarily, to create offences against Govern
ment, or to take cognizance of cases which fall under the ex
clusive jurisdiction of the State courts. In order to claim any
authority under this clause the supporters of this bill must show
the specific power given to Congress or to the President, by
some other part of the Constitution, which would be carried into
effect by a law against libels. They must go further — they must
show which of those constitutional powers it was which could
not be carried into effect, unless this law was passed. It was in
that manner that the authority of Congress had heretofore been
exercised; they had passed no penal laws, except such as arose
from the necessity of carrying into effect some of the specific
powers vested in them. Thus, as they had the exclusive power
to establish post roads, they had made it penal to rob the mail ;
and as they were authorized to lay taxes, they had passed laws
to punish frauds of revenue officers, or evasions of the revenue
laws. But, until this bill was proposed, Congress had never at
tempted to define or punish offences generally; and the gentle
man from Massachusetts was mistaken when he had stated that
forgery was generally punishable by the laws of the United
States. It was only in those specific cases defined by the Con
stitution, or which arose from some power heretofore exercised
by Congress, that forgery came under the jurisdiction of the
Federal courts.
The bill now under discussion justified the suspicions of those
who, at the time of the adoption of the Constitution, had appre
hended that the sense of that generally expressed clause might
80 GREAT AMERICAN DEBATES
be distorted for that purpose. It was in order to remove these
fears that the amendment, which declares that Congress shall
pass no law abridging the freedom of speech or the liberty of
the press, was proposed and adopted — an amendment which was
intended as an express exception to any supposed general power
of passing laws, etc., vested in Congress by the other clause.
The sense in which he and his friends understood this amend
ment was that Congress could not pass any law to punish any
real or supposed abuse of the press. The construction given to it
by the supporters of the bill was that it did not prevent them
to punish what they called the licentiousness of the press, but
merely forbade their laying any previous restraints upon it. It
appeared to him preposterous to say that to punish a certain
act was not an abridgment of the liberty of doing that act. It
appeared to him that it was an insulting evasion of the Consti
tution for gentlemen to say, "We claim no power to abridge the '
liberty of the press; that you shall enjoy unrestrained. You
may write and publish what you please, but if you publish any
thing against us we will punish you for it. So long as we do not
prevent, but only punish your writings, it is no abridgment of
your liberty of writing .and printing."
The Government has existed for more than nine years with
out the assistance of this law. This law is not, then, necessary
at all times; indeed, it is intended only to last for three years.
Let, then, gentlemen prove that that necessity now exists which
heretofore did not exist. It is an obligation laid upon them by
the Constitution itself, evidently, to prove that an alteration has
taken place in the situation of this country which impels us to
pass this law. And yet they are silent. Where is the House to
find proofs of that wonderful, yet unknown, change in our cir
cumstances ? Will they derive their information from the news
paper scraps with which they had been entertained, the other
day, by a member from Connecticut? as if there was anything
alarming or novel in paragraphs blaming or attacking certain
measures or certain individuals of Government ; as if the present
Administration felt more afraid of newspaper abuse than former
Administrations, or than other men. Or is Congress to receive a
conviction of that alteration from the plot which the gentleman
from South Carolina [Mr. Harper] had promised to unfold —
a plot in which not one member on this floor did believe, when it
was announced, and in which he suspected the gentleman him
self had long since discovered he had been mistaken? Leaving,
however, those ridiculous grounds of alarm (and, ludicrous as it
might appear to an indifferent hearer, they were the only ones
THE SEDITION LAW 81
that had yet been alleged in support of this bill), Mr. G. would
ask whether gentlemen did not believe themselves that at no time
had there been less to be apprehended from presses that circu
lated opinions in opposition to the measures of Government ; that
no reason could be adduced why this bill should pass, except
that a party in the United States, feeling that they had more
power, were not afraid of passing such a law, and would pass it,
because they felt themselves so strong — so little in need of the
assistance of that measure — that they expected to be supported
by the people, even in that flagrant attack upon the Constitution ?
But if gentlemen believe this bill necessary in order to enable
this House to do their duty, they must recollect that this House
is composed of individuals, and that, according to their own doc
trine, in order to insure a conscientious vote in the whole House,
every individual, and not a majority of the House, ought to be
equally sheltered by this law from the abuse of printers. While,
therefore, they support the bill in its present shape, do they not
avow that the true object of the law is to enable one party to
oppress the other; that they mean to have the power to punish
printers who may publish against them, while their opponents
will remain alone, and without redress, exposed to the abuse of
ministerial prints? Is it not their object to frighten and sup
press all presses which they consider as contrary to their views ;
to prevent a free circulation of opinion; to suffer the people at
large to hear only partial accounts, and but one side of the ques
tion; to delude and deceive them by partial information, and,
through those means, to perpetuate themselves in power?
In vain did those gentlemen attempt to shelter themselves
under the different pleas that this bill could only affect the au
thors of false publications, since any man might justify his writ
ings by giving in evidence the truth of his assertions ; and that it
created no new offence, but only reenacted what had always been
the common law of libels.
It was true that, so far as related merely to facts, a man
would be acquitted by proving that what he asserted was true.
But the bill was intended to punish solely writings of a political
nature, libels against the Government, the President, or either
branch of the legislature ; and it was well known that writings,
containing animadversions on public measures almost always
contained, not only facts, but opinions. And how could the
truth of opinions be proven by evidence? If an individual
thinking, as he himself did, that the present bill was unconsti
tutional, and that it had been intended, not for the public good,
but solely for party purposes, should avow and publish his opin-
VII— 6
82 GREAT AMERICAN DEBATES
ion, and if the Administration thought fit to prosecute him for
that supposed individual offence, would a jury, composed of the
friends of that Administration, hesitate much in declaring the
opinion ungrounded, or, in other words, false and scandalous,
and its publication malicious? And by what kind of argument
or evidence, in the present temper of parties, could the accused
convince them that his opinion was true ?
As to the assertion that the bill, under its present modifica
tions, was nothing more than the common law of libels, he would
observe that no gentleman could be satisfied that the few lines
of which the bill consisted contained the genuine and unadulter
ated principles of the law of libels — a law which had arisen from
the precedents and judicial decisions of three centuries; a law
which, like every other branch of the common law of England,
had received different modifications in the different States, so as
to be now dissimilar in every one. He had not critically exam
ined the bill in that point of view; but he would just notice a
mode of expression which, if strictly construed, would introduce
a principle now unknown to the common law of libels. By the
bill, every person who should write, print, utter, or publish,
etc., was guilty; so that a person only writing what might be
adjudged a libel, although he neither printed, published, read,
nor communicated his work to anyone, and although he did not
intend it for publication, might, like Algernon Sidney, be found
guilty, under this act, for the offence only of having thrown his
ideas on paper.
But, although there might be no change made by this bill in
the law of libels, there was an all-important one made by the
transfer of jurisdiction. Heretofore the cognizance of offences
of this nature had exclusively belonged to the State courts, and
the mode of trial was essentially altered by being had before the
Federal courts. It was not only by being deprived of the bene
fits of a trial by a jury of their vicinage that the accused persons
were put in a worse situation ; the manner of selecting the jury
was, in some States, very different in the courts of the United
States from what it was in the State courts. In Pennsylvania,
if the prosecution was before the State court, the jury would be
summoned by the sheriff, but if before the Federal court, the
marshal, in that case, would summon the jury. The difference in
this case was immense. The sheriff was the officer of the people,
the marshal was the creature of the Executive. And, however
immaterial this might be in ordinary suits or prosecutions, when
the offences were, as under this bill, altogether of a political
nature; when the supposed crimes to be punished were a libel
THE SEDITION LAW 83
against the Administration, what security of a fair trial re
mained to a citizen, when the jury was liable to be packed by the
Administration, when the same men were to be judges and
parties ?
After having given this short sketch of the features of this
bill Mr. G. said he had intended to make some general remarks
on the nature of political libels, or of writings against the meas
ures of the Administration, and on the propriety of interfering
at all by law with them. The lateness of the hour prevented
him. He would only observe that laws against writings of this
kind had uniformly been one of the most powerful engines used
by tyrants to prevent the diffusion of knowledge, to throw a veil
on their folly or their crimes, to satisfy those .mean passions
which always denote little minds, and to perpetuate their own
tyranny. The principles of the law of political libels were to
be found in the rescripts of the worst Emperors of Rome, in
the decisions of the Star Chamber. Princes of elevated minds,
governments actuated by pure motives, despising the slanders
of malice, had ever listened to the animadversions made on
their conduct. They knew that the proper weapon to combat
error was truth, and that to resort to coercion and punishments
in order to suppress writings attacking their measures was to
confess that these could not be defended by any other means.
MR. HARPER said, in the first place, gentlemen who oppose
the bill had said that hitherto the Government of the United
States had existed and prospered without a law of this kind, and
then exultingly asked: "What change has now taken place to
render such a law necessary ? ' ' The change, in his opinion, con
sisted in this: that, heretofore, we had been at peace and were
now on the point of being driven into a war with a nation which
openly boasted of its party among us, and its ' * diplomatic skill, ' '
as the most effectual means of paralyzing our efforts and bring
ing us to its own terms. Of the operations of this skill among us,
by means of corrupt partisans and hired presses, he had no
doubt ; he was every day furnished with stronger reasons for be
lieving in its existence and saw stronger indications of its syste
matic exertion. We knew its effects in other countries, where it
had aided the progress of France much more effectually than the
force of her arms. He knew no reason why we should not harbor
traitors in our bosom as well as other nations ; and he did most
firmly believe that France had a party in this country, small,
indeed, and sure to be disgraced and destroyed as soon as its
designs should become generally known, but active, artful, and
determined, and capable, if it could remain concealed, of effect-
84 GREAT AMERICAN DEBATES
ing infinite mischief. This party was the instrument of her
"diplomatic skill." By this party she hoped to stop "the
wheels of our Government," enchain our strength, enfeeble our
efforts, and, finally, subdue us; and, to repress the enterprises
of this party he wished for a law against sedition and libels, the
two great instruments whereby France and her partisans had
worked for the destruction of other countries, and he had no
doubt were now working, he trusted unsuccessfully, for the de
struction of this.
He could not, therefore, believe that our safety hitherto ought
to lull us into security now; unless gentlemen could convince
him that, because a person had existed in health for nine years,
he ought to refuse medicine when he at length felt the approach
of disease ; or, when he saw the daggers of assassins everywhere
whetted against him, should neglect to put on a coat of mail
because for nine years he had not been assailed. The coat of
mail which Congress was about to provide in this law might turn
away the point of some dagger aimed at the heart of the Gov
ernment, and, in that case, it would, he said, be matter of re
joicing that the bill had passed. Should no such case occur, then,
like a sword, which there has been no occasion to draw, it will
have done no harm.
He admitted that there was plausibility in the objection
founded on that part of the Constitution which provides that
"Congress shall pass no law to abridge the liberty of speech or
of the press." He held this to be one of the most sacred parts
of the Constitution, one by which he would stand the longest
and defend with the greatest zeal. But to what, he asked, did
this clause amount? Did this liberty of the press include sedi
tion and licentiousness ? Did it authorize persons to throw, with
impunity, the most violent abuse upon the President and both
Houses of Congress? "Was this what gentlemen meant by the
liberty of the press? As well might it be said that the liberty
of action implied the liberty of assault, trespass, or assassina
tion. Every man possessed the liberty of action ; but, if he used
this liberty to the detriment of others, by attacking their persons
or destroying their property, he became liable to punishment for
this licentious abuse of his liberty. The liberty of the press
stood on precisely the same footing. Every man might publish
what he pleased ; but, if he abused this liberty so as to publish
slanders against his neighbor, or false, scandalous, and malicious
libels against the magistrates or the Government, he became
liable to punishment. What did this law provide? That, if
"any person should publish any false, scandalous, and malicious
THE SEDITION LAW 85
libel against the President or Congress, or either House of Con
gress, with intent to stir up sedition, or to produce any other of
the mischievous and wicked effects particularly described in
the bill, he should, on conviction before a jury, be liable to fine
and imprisonment." A jury is to try the offence, and they must
determine, from the evidence and the circumstances of the case,
first, that the publication is false, secondly, that it is scandalous,
thirdly that it is malicious, and, fourthly, that it was made with
the intent to do some one of the things particularly described
in the bill. If, in any one of these points, the proof should fail,
the man must be acquitted ; and it is expressly provided that he
may give the truth of the publication in evidence as a justifica
tion. Such is the substance of this law ; and yet it is called a law
abridging the liberty of the press ! That is to say, that the lib
erty of the press implies the liberty of publishing, with impunity,
false, scandalous, and malicious writings, with intent to stir up
sedition, etc. As well might it be said that the liberty of action
implies the liberty to rob and murder with impunity! •
"Whence was it, Mr. H. asked, that all confidence in the trial
by jury was now discarded by those gentlemen who have here
tofore so warmly and so justly sounded its praises? Why are
juries, in whose hands the fortunes, the lives, and the reputa
tions of the citizens had been safely deposited by our laws and
Constitutions, no longer to be trusted when it is in question to
punish those who, with wicked intent, publish false, scandalous,
and malicious libels against the President and Congress? Is
this offence of so sacred a nature, so dear to gentlemen, that
the authors of it cannot be trusted in the hands of a jury of
their fellow-citizens ?
Such, Mr. H. said, had ever been his impressions concerning
the liberty of the press, which he deemed to stand on the same
ground, and to be liable to the same restraints by law, as the
liberty of action ; nor could he be persuaded that the liberty of
the press, as understood by the Constitution, could ever be
abridged by a law to punish, on conviction before a jury, the
publication of false, scandalous, and malicious libels. He was
very happy to find his opinions fully supported by those of a
most venerable man, whose character was admired and revered
by all, and who could never be suspected of wishing to abridge
the liberty of the press. He held in his hand a little volume
of essays by the late Dr. Franklin, among which there was one
entitled "An Account of the Highest Court of Judicature in
Pennsylvania, viz.: the Court of the Press."
Speaking of "the checks proper to be established against the
86 GREAT AMERICAN DEBATES
abuses of power in the court of the press " the venerable and
ingenious author says:
"Hitherto there are none. But since so much has been written and
published on the Federal Constitution, and the necessity of checks, in all
other parts of good government, has been so clearly and learnedly explained,
I find myself so far enlightened as to suspect some check may be proper
in this part also; but I have been at a loss to imagine any that may not
be construed an infringement of the sacred liberty of the press. At length,
however, I think I have found one that, instead of diminishing general
liberty, will augment it; which is by restoring to the people a species of
liberty of which they have been deprived by our laws; I mean the liberty
of the cudgel ! In the rude state of society, prior to the existence of laws,
if one man gave another ill language, the affronted person might return it
by a box on the ear; and, if repeated, by a good drubbing; and this with
out offending against any law; but now the right of making such returns
is denied, and they are punished as breaches of the peace, while the right
of abusing seems to remain in full force; the laws made against it being
rendered ineffectual by the liberty of the press.
"My proposal, then, is to leave the liberty of the press untouched, to
be executed in its full extent, force, and vigor, but to permit the liberty of
the cudgel to go with it, pari passu. Thus, my fellow-citizens, if an impu
dent writer attacks your reputation, dearer to you perhaps than your life,
and puts his name to the charge, you may go to him, as openly, and break
his head. If he conceals himself behind the printer, and you can neverthe
less discover who he is, you may, in like manner, waylay him in the night,
attack him behind, and give him a good drubbing. If your adversary hires
better writers than himself to abuse you more effectually, you may hire
brawny porters, stronger than yourself, to assist you in giving him a more
effectual drubbing. Thus far goes my project as to private resentment and
restitution. But if the government should ever happen to be affronted, as
it ought to be, with the conduct of such writers, I would not advise pro
ceeding immediately to these extremities, but that we should, in moderation,
content ourselves with tarring and feathering and tossing them in a blanket.
"If, however, it should be thought that this proposal of mine may dis
turb the public peace, I would then humbly recommend to our legislators
to take up the consideration of both liberties, that of the press, and that
of the cudgel; and, by an explicit law, mark their extent and limits; and,
at the same time that they secure the person of a citizen from assaults,
they would likewise provide for the security of his reputation."
Thus we see, continued Mr. H., that this great man, the
champion of liberty, who spent his life in promoting her cause,
did not think that the liberty of the press would be abridged by
an explicit law for curbing its licentiousness. Supported by this
great authority, I can never believe that a law to punish the
publication of false, scandalous, and malicious libels, on con
viction by a jury, is a law "to abridge the liberty of the press,"
as intended by the Constitution.
The gentleman from New York [Mr. Livingston] has thought
proper to quote a very venerable authority, the * ' Defence of the
THE SEDITION LAW 87
American Constitution, ' ' by the present President of the United
States, in order to prove that this Government is advancing
rapidly to a despotism. The passage is very striking, and most
forcibly marks the steps of progressing tyranny. Most of those
steps, the gentleman declares, have been, or are on the point of
being, taken by this Government. But there is one part of the
passage which he has forgotten to notice. Let me be permitted
to recall it to his attention. The learned and venerable author
is treating of the tendency toward despotism which exists in a
Government composed of one branch, or whose whole powers
are concentrated in one popular assembly; and, in order to
warn us of the dangers of such a government, and inculcate the
necessity of a division of power for the support of liberty, he
tells us how the great men, the heads and leaders of the great
and wealthy families, find their way into such an assembly and
acquire an absolute influence over its decisions. He then goes
on to mark the steps, those very steps, quoted by the gentleman
from New York, whereby they render their seats permanent,
stifle opposition, subjugate the assembly, usurp its powers, and,
at length, establish an oligarchy or a despotism on the ruins of
the democracy. Let the House recollect how persevering and
vigorous have been the efforts of the gentleman from New York
and his political associates to pave the way for this state of
things by concentrating gradually, sometimes under one pretext
and sometimes under another, all the powers of our Government
in this House, by demolishing, piece by piece, the checks estab
lished in the Senate and the executive power; and then it will
be able to judge to whom his quotation is most applicable; to
himself and his friends, or to those who strenuously have op
posed, and who do still oppose, these his enterprises; to those
who struggle to preserve the division of power and the balance
of the Constitution, or to those who exert all their might to
destroy them both and reduce the Government to a single repre
sentative democracy on which that oligarchy, so earnestly panted
after by self-named friends of the people and exclusive patriots,
is so speedily and so certainly engrafted.
The bill was then passed — yeas 44, nays 41.
Of the Sedition Law Alexander Johnston remarks in
his "American Political History ":
"If the doctrine of the Federalists was correct (and it was
certainly never contradicted by the Federal courts until fourteen
years had passed, and the judiciary, with the other departments
88 GREAT AMERICAN DEBATES
of Government, had fallen into Democratic hands), then the
Sedition Law was a very salutary remedial modification of the
common law, since it allowed the truth to be given in evidence
and laid down bounds of punishment which the judges could
not pass. If, on the other hand, the Republican doctrine was
correct, the Sedition Law was a pernicious precedent, since, by
making a common-law offence statutory, it implied a common-law
criminal jurisdiction in the Federal courts, wherever statutes
did not interfere. The Republicans had little legal talent in
their ranks in 1798 and had made little open opposition to the
Federalist claims on this point."
This last statement is surprising, coming as it does
from such a distinguished writer on American politics.
Certainly the foregoing debate proves the exact con
trary of the assertion : the Federalists had no represen
tatives in Congress whose legal ability was at all equal
to that of Gallatin and Livingston, and these bril
liant and learned debaters certainly made the boldest,
strongest, and most thorough opposition to the Federal
ist claims on the point in question. The only explana
tion of Professor Johnston's error is that, instead of
consulting the original sources, he must have followed
Senator Benton's "Abridgment of the Debates of Con
gress, " in which the final exhaustive argument of Gal
latin against the encroachment of the Federal judiciary
on the jurisdiction of the State courts is entirely omitted,
and the argument of Livingston on the same point is too
greatly abridged, while space is unnecessarily given to
Livingston's argument against the obvious unconstitu
tionally of the restriction of liberty of the press. Never
theless Benton gives very fully the arguments against
Federal jurisdiction which were presented by Nathaniel
Macon, whose legal talent was at least equal to that of
any Federalist Representative.
CHAPTER IV
THE KENTUCKY AND VIRGINIA RESOLUTIONS
Partisan Enforcement of the Sedition Law — Resolutions against the Law
Are Adopted by the Kentucky and Virginia Legislatures, Drafted Re
spectively by Thomas Jefferson and James Madison — Debate in the
Virginia Legislature on the Resolutions: Summaries by Sen. Thomaa
H. Benton [Mo.] of the Arguments — Address to the People by the
Virginia Legislature — Address by the Minority of the Virginia Legis
lature in Favor of the Alien and Sedition Laws — Replies to the Ken
tucky and Virginia Resolutions by Other State Legislatures — Supple
mentary Resolutions of the Kentucky Legislature — Madison's Report on
the Virginia Resolutions — Supplementary Resolution of the Virginia
Legislature — Purposes of Jefferson and Madison in the Resolutions:
the Calling of a National Convention of the States to Amend the Con
stitution by Giving Three-fourths of the States a Veto on Federal Acts,
and Arousing Public Opinion against the Federalists — Failure of the
First Purpose and Success of the Second — Subsequent Resolutions by
Various States on Federal Usurpation — Common Law Jurisdiction of
the Federal Courts — Justice Joseph Story Upholds It against the Theory
of Madison in the Virginia Resolutions — First Inaugural of President
Jefferson: "The Road to Liberty. "
AS has been noted no prosecutions were made under
the Alien Laws. Those that were instituted
under the Sedition Law were plainly partisan in
their animus. Thus, as Professor Johnston instances,
Hamilton, between whom and Adams enmity had arisen
through the political ambition either of one or the other,
or of both, published an attack on President John Adams,
charging him with "disgusting egotism, distempered
jealousy, ungovernable indiscretion, and arrogant pre
tence to superior and exclusive merit," and yet, because
of his prominence in his party, Hamilton was not prose
cuted, while certain Republicans were arrested and tried
(though unsuccessfully) for the mere circulation of peti
tions against the law or for the lese-majeste of wishing,
89
90 GREAT AMERICAN DEBATES
on the occasion of a military salute to the President,
that the wadding of a cannon might strike him in the
broadest part of his person. Some of the Eepublican
leaders expressed the apprehension that, in the event
of their party securing a majority in the next House,
the Federalists would attempt to remove enough of their
opponents to retain the present control. This fear, how
ever, proved unfounded.
According to a long accepted view, as acknowledged
leaders of their party Jefferson and Madison proceeded
to procure the overthrow of the obnoxious Sedition Law
by organizing a counter-revolution against it in the State
legislatures. They very judiciously selected the strongly
Eepublican States of Kentucky and Virginia in which to
begin the movement. For the legislature of the former
State Jefferson prepared certain resolutions.1 They were
passed by the House on November 10, by the Senate on
November 13, and signed by the Governor on November
19, 1798. Their substance is as follows :
THE KENTUCKY BESOLUTIONS
DRAFTED BY THOMAS JEFFERSON
1. The union of the States is a compact by which each
State delegated to the Federal Government definite powers,
reserving to itself the residuary mass of right to their own
self-government. "When, therefore, the Federal Government
assumes undelegated powers its acts are void. The Federal
Government was not constituted by the compact a final judge
of the extent of its delegated powers, since this would have made
its discretion, and not the Constitution, the measure of its
powers. The Constitution established no common judge between
the Federal Government and the State governments, and, ac
cording to the practice in all compacts of this kind, each party
has an equal right to judge for itself, as well of infractions
as of the mode and measure of redress.
2. Congress has the right to pass laws for the punishment
of no other crimes than those expressly mentioned in the Con
stitution as under its jurisdiction.
1 For a recent, and, to the editor 's mind, a more acceptable theory of
the origin of these resolutions, see the Introduction to Volume V, by Presi
dent Warfield, on this subject.
STATE RIGHTS RESOLUTIONS 91
3. By the general principle of the compact (the Constitu
tion) power over speech and the press is reserved to the States,
and by a specific amendment thereto (No. 1) is expressly pro
hibited to the Federal Government. Therefore, by 1 and 2,
the Sedition Law is void, and, by 1,
4. The Alien Laws are void.
5. The Alien Laws are also void because of Article I, Sec
tion 9, Par. 1, of the Constitution, which reserves to the States
until 1808 all control over the migration and importation of
such persons as they shall think proper to admit.
6. The Alien Laws are void, because they are contrary to
the amendments to the Constitution, which provide that "no
person shall be deprived of liberty without due process of
law" (No. V) and that "in all criminal prosecutions the ac-
'cused shall enjoy the right of a public trial by an impartial
jury," etc. (No. VI), and also because the Alien Laws transfer
the jurisdiction of aliens from the courts to the President, con
trary to Article III, Section 1 of the Constitution.
7. The broad construction, by the Administration, of Ar
ticle I, Section 8, Par. 1, of the Constitution: "Congress shall
have power to collect taxes, etc., and provide for the common
defence and general welfare," and of Par. 18 in the same sec
tion: "To make all laws . . . necessary . . . for car
rying into execution the . . . powers vested ... in
the Government," is inadmissible, since these powers are sub
sidiary to the execution of limited powers mentioned in the
context, and, if the paragraphs are construed independently
as giving unlimited powers, the whole residue of the Constitu
tion will be destroyed. All proceedings under a broad con
struction of these paragraphs will be a fit and necessary subject
for revision at a time of greater tranquillity, and the specific
Alien and Sedition Laws call for immediate redress.
8. These resolutions shall be transmitted to the Senators
and Representatives from Kentucky, who are enjoined to use
their efforts to procure a repeal of the said acts.
9. These resolutions shall be transmitted to the legisla
tures of the States as an expression of Kentucky's views of the
Constitution, and its fears of the destruction of the intent of
that instrument and of the rights of the States by the general
Government and, especially, the President, who is arrogating
to himself powers which may lead to his becoming accuser,
counsel, judge, and jury, his suspicions being the evidence, his
order the sentence, his officer the executioner, and his breast
the sole record of the transaction. A similar assumption of
92 GREAT AMERICAN DEBATES
powers is in process in Congress, which may lead to the ex
portation or punishment, by the majority, of the minority, and
of officers of the various States who oppose their plans. These
usurpations, unless arrested on the threshold, may tend to drive
the States into revolution and so furnish new arguments for
despots against republics. It would be a dangerous delusion
were a confidence in the men of our choice to silence our fears
for the safety of our rights : confidence is everywhere the parent
of despotism; free government is founded in jealousy, and not
in confidence. Hence the limits fixed in our Constitution. Let
the honest advocate of confidence read the Alien and Sedition
Laws and say if the Constitution was not wise in fixing these
limits; let him say what this government is, if it be not a
tyranny, when the President of our choice exercises unconsti
tutional powers over the friendly strangers to whom the mild
spirit of our country and its laws had pledged hospitality and
protection, and when Senators and Representatives of our
choice uphold him in so doing, regarding more the bare sus
picions of the President than the solid rights of innocence, the
claims of justification, the sacred force of truth, and the forms
and substance of law and justice.
In questions of power, then, let no more be said of confi
dence in man, but bind him down from mischief by the chains
of the Constitution.
This commonwealth calls on its co-States to declare
whether they believe the Alien and Sedition Acts are or are not
authorized by the Federal compact, trusting that they will con
cur in her opinions of them as unconstitutional and as opening
the way for the general Government to seize the rights of the
States and destroy government by the consent of the governed,
and that, recurring to their natural rights not made Federal,
they will join with her in requesting the repeal of these acts
at the next session of Congress.
Mr. Madison drafted the resolutions for the legisla
ture of Virginia. For the text of these resolutions see
the paragraphs in small type in " Madison's Report on
the Virginia Resolutions" on page 105 ss. They were
passed on December 24, 1798, after an animated debate.
The following account of the debate is given by Senator
Thomas H. Benton in Ms "Thirty Years' View":
The principal speakers in the Virginia legislature in
opposition to the resolutions were: Mr. George Keith
STATE RIGHTS RESOLUTIONS 93
Taylor, Mr. Magill, Mr. Brooke, Mr. Cowan, Gen. Henry
Lee, and Mr. Cureton. Nearly the whole debate turned,
not on the abstract propriety or expediency of such reso
lutions, but on the question whether the acts of Congress
which were specially complained of were, in fact, uncon
stitutional. Beyond the discussion of this point the
speakers dwelt only on the supposed " tendency " of such
declarations to excite the people to insubordination and
non-submission to the law.
DEBATE ON THE VIRGINIA EESOLUTIONS
LEGISLATURE OP VIRGINIA, DECEMBER, 1798
MR. GEORGE K. TAYLOR complained at the commencement of
his speech, that the resolutions " contained a declaration, not of
opinion, but of fact"; and he apprehended that "the conse
quences of pursuing the advice of the resolutions would be insur
rection, confusion, and anarchy."
1 ' The members of that Congress which had passed those laws had been,
so far as ho could understand, since generally reflected; therefore he
thought the people of the United States had decided in favor of their con
stitutionality, and that such an attempt as they were then making to induce
Congress to repeal the laws would be nugatory. "
MR. BROOKE thought resolutions ''declaring laws which had
been made by the Government of the United States to be uncon
stitutional, null and void," were "dangerous and improper";
that they had a "tendency to inflame the public mind"; to lessen
the confidence that ought to subsist between the representatives
of the people in the general Government and their constituents ;
and to ' l sap the very foundations of the Government by produc
ing resistance to its laws. ' ' He was equally opposed to any modi
fication of them that should be "intended as an expression of
the general sentiment on the subject, because he conceived it to
be an improper mode by which to express the wishes of the
people of the State on the subject."
GENERAL HENRY LEE thought the alien and sedition laws ' ' not
unconstitutional"; but, if they were unconstitutional, he "ad
mitted the right of interposition on the part of the General As
sembly. ' ' But he thought these resolutions showed ' ' indecorum
and hostility, ' ' and were ' ' not the likeliest way to obtain a repeal
of the laws. ' ' He ' ' suspected, ' ' in fact, that ' ' the repeal of the
laws was not the leading point in view," but that they "cov-
94 GREAT AMERICAN DEBATES
ered" the objects of "promotion of disunion and separation
of the States." The resolutions "struck him as recommending
resistance. They declared the laws null and void. Our citizens
thus thinking would disobey the laws." His plan would be, if
he thought the laws unconstitutional, to let the people petition,
or that the legislature come forward at once, "with a proposi
tion for amending the doubtful parts of the Constitution"; or
with a "respectful or friendly memorial, urging Congress to
repeal the laws." But he "admitted" the only right which the
resolutions assert for the State, namely, the right "to inter
pose." The remarks of the other opponents to the resolutions
were to the same effect.
On behalf of the resolutions the principal speakers were:
Mr. John Taylor, of Caroline, who had introduced them; Mr.
Ruffin, Mr. Mercer, Mr. Pope, Mr. Foushee, Mr. Daniel, Mr.
Peter Johnston, Mr. Giles, Mr. James Harbour.
They obviated the objection of the speakers on the other side
that the resolutions "contained a declaration not of opinion,
but of fact," by striking out the words which, in the original
draft, declared the acts in question to be "null, void, and of no
force or effect"; so as to make it manifest, as the advocates of
the resolutions maintained, that they intended nothing beyond
an expression of sentiment. They obviated another objection
which appeared in the original draft, which asserted the States
alone to be the parties to the Constitution, by striking out the
word "alone." They thoroughly and successfully combated
both the "suspicion" that they hid any ulterior object of dis
sension or disunion, and the "apprehension" that the resolu
tions would encourage insubordination among the people. They
acceded to and affirmed that their object was to obtain a repeal
of the offensive measures ; that the resolutions might ultimately
lead to a convention for amending the Constitution, and that
they were intended both to express and to affect public opinion ;
but nothing more.
The minority afterwards published its arguments in
an "Address Containing a Vindication of the Constitu
tionality of the Alien and Sedition Laws." The pam
phlet was intended to be an offset to the resolutions
passed by the majority and was, like these, sent to the
legislatures of the other States.
The majority sent along, with its resolutions the fol
lowing :
STATE RIGHTS RESOLUTIONS 95
ADDRESS TO THE PEOPLE
BY THE VIRGINIA LEGISLATURE
Fellow-citizens : Unwilling to shrink from our representative
responsibilities, conscious of the purity of our motives, but ac
knowledging your right to supervise our conduct, we invite your
serious attention to the emergency which dictated the subjoined
resolutions. While we disdain to alarm you by ill-founded jeal
ousies, we recommend an investigation guided by the coolness
of wisdom, and a decision bottomed on firmness but tempered
with moderation.
It would be perfidious in those intrusted with the guardian
ship of the State sovereignty, and acting under the solemn
obligation of the following oath — "I do swear that I will sup
port the Constitution of the United States" — not to warn you
of encroachments, which, though clothed with the pretext of
necessity, or disguised by arguments of expediency, may yet
establish precedents which may ultimately devote a generous
and unsuspicious people to all the consequences of usurped
power.
Encroachments springing from a government whose organi
zation cannot be maintained without the cooperation of the
States furnish the strongest excitements upon the State
legislatures to watchfulness, and impose upon them the
strongest obligation to preserve unimpaired the line of parti
tion.
The acquiescence of the States, under infractions of the Fed
eral compact, would either beget a speedy consolidation, by pre
cipitating the State governments into impotency and contempt,
or prepare the way for a revolution by a repetition of these
infractions until the people are aroused to appear in the majesty
of their strength. It is to avoid these calamities that we exhibit
to the people the momentous question whether the Constitution
of the United Sates shall yield to a construction which defies
every restraint and which overwhelms the best hopes of repub
licanism.
Exhortation to disregard domestic usurpation until foreign
danger shall have passed is an artifice which may be forever
used; because the possessors of power, who are the advocates
for its extension, can never create national embarrassments, to
be successively employed to soothe the people into sleep, while
that power is swelling silently, secretly, and fatally. Of the
same character are insinuations of a foreign influence, which
seize upon a laudable enthusiasm against danger from abroad
96 GREAT AMERICAN DEBATES
and distort it by an unnatural application so as to blind your
eyes against danger at home.
The Sedition Act presents a scene which was never expected
by the early friends of the Constitution. It was then admitted
that the State sovereignties were only diminished by powers
specifically enumerated or necessary to carry the specified powers
into effect. Now, Federal authority is deduced from implica
tion; and, from the existence of State law, it is inferred that
Congress possess a similar power of legislation; whence Con
gress will be endowed with a power of legislation in all cases
whatsoever, and the States will be stripped of every right re
served, by the concurrent claims of a paramount legislature.
The Sedition Act is the offspring of these tremendous pre
tensions which inflict a death-wound on the sovereignty of the
States.
For the honor of American understanding we will not believe
that the people have been allured into the adoption of the Con
stitution by an affectation of defining powers, while the pre
amble would admit a construction which would erect the will of
Congress into a power paramount in all cases and, therefore,
limited to none. On the contrary, it is evident that the objects
for which the Constitution was formed were deemed attainable
only by a particular enumeration and specification of each power
granted to the Federal Government ; reserving all others to the
people, or to the States. And yet it is in vain we search for
any specified power embracing the right of legislation against
the freedom of the press.
Had the States been despoiled of their sovereignty by the
generality of the preamble, and, had the Federal Government
been endowed with whatever they should judge to be instrumental
toward the Union, justice, tranquillity, common defence, general
welfare, and the preservation of liberty, nothing could have been
more frivolous than an enumeration of powers.
All the preceding arguments, arising from a deficiency of
constitutional power in Congress, apply to the Alien Act; and
this act is liable to other objections peculiar to itself. If a
suspicion that aliens are dangerous constitutes the justification
of that power exercised over them by Congress, then a similar
suspicion will justify the exercise of a similar power over na
tives ; because there is nothing in the Constitution distinguishing
between the power of a State to permit the residence of natives
and aliens. It is, therefore, a right originally possessed, and
never surrendered, by the respective States, and which is ren
dered dear and valuable to Virginia because it is assailed through
STATE RIGHTS RESOLUTIONS 97
the bosom of the Constitution and because her peculiar situa
tion renders the easy admission of artisans and laborers an in
terest of vast importance.
But this bill contains other features still more alarming and
dangerous. It dispenses with the trial by jury; it violates
the judicial system; it confounds legislative, executive, and
judicial powers; it punishes without trial; and it bestows upon
the President despotic power over a numerous class of men.
Are such measures consistent with our constitutional principles ?
And will an accumulation of power so extensive in the hands
of the Executive over aliens secure to natives the blessings of
republican liberty?
If measures can mold governments, and if an uncontrolled
power of construction is surrendered to those who administer
them, their progress may be easily foreseen and their end easily
foretold. A lover of monarchy who opens the treasures of cor
ruption by distributing emolument among devoted partisans
may, at the same time, be approaching his object and deluding
the people with professions of republicanism. He may con
found monarchy and republicanism by the art of definition.
He may varnish over the dexterity which ambition never fails to
display with the pliancy of language, the seduction of expedi
ency, or the prejudices of the times ; and he may come at length
to avow that so extensive a territory as that of the United States
can only be governed by the energies of monarchy ; that it can
not be defended except by standing armies; and that it cannot
be united except by consolidation.
Measures have already been adopted which may lead to these
consequences. They consist —
In fiscal systems and arrangements, which keep a host of
commercial and wealthy individuals imbodied and obedient to the
mandates of the treasury; —
In armies and navies, which will, on the one hand, enlist
the tendency of man to pay homage to his fellow-creature who
can feed or honor him; and, on the other, employ the principle
of fear by punishing imaginary insurrections under the pretext
of preventive justice; —
In swarms of officers, civil and military, who can inculcate
political tenets tending to consolidation and monarchy, both by
indulgences and severities, and can act as spies over the free
exercise of human reason ; —
In restraining the freedom of the press and investing the
Executive with legislative, executive, and judicial powers over
a numerous body of men ; —
VII— 7
98 GREAT AMERICAN DEBATES
And, that we may shorten the catalogue, in establishing, by
successive precedents, such a mode of construing the Constitution
as will rapidly remove every restraint upon Federal power.
Let history be consulted; let the man of experience reflect;
nay, let the artificers of monarchy be asked what further ma
terials they can need for building up their favorite system.
These are solemn but painful truths ; and yet we recommend
it to you not to forget the possibility of danger from without,
although danger threatens us from within. Usurpation is indeed
dreadful; but against foreign invasion, if that should happen,
let us rise with hearts and hands united and repel the attack
with the zeal of freemen who will strengthen their title to ex
amine and correct domestic measures by having defended their
country against foreign aggression.
Pledged as we are, fellow-citizens, to these sacred engage
ments, we yet humbly, fervently implore the Almighty Disposer
of Events to avert from our land war and usurpation, the scourges
of mankind ; to permit our fields to be cultivated in peace ; to
instil into nations the love of friendly intercourse ; to suffer our
youth to be educated in virtue, and to preserve our morality
from the pollution invariably incident to habits of war ; to
prevent the laborer and husbandman from being harassed by
taxes and imposts; to remove from ambition the means of dis
turbing the commonwealth ; to annihilate all pretexts for power
afforded by war ; to maintain the Constitution ; and to bless our
nation with tranquillity, under whose benign influence we may
reach the summit of happiness and glory, to which we are des
tined by nature and nature's God.
Copies of the Virginia and Kentucky resolutions were
sent to the "Co-States." Replies were made to Vir
ginia by the legislatures of New Hampshire, Vermont,
Massachusetts, Rhode Island, Connecticut, New York
(different replies from the Senate and the House), Dela
ware, Pennsylvania (the House), and Maryland. Re
plies to Kentucky were adopted by the following: New
Hampshire (same as to Virginia), Vermont, Rhode Is
land (similar as to Virginia), Connecticut, New York
(the House, same as to Virginia), Pennsylvania, Dela
ware (similar as to Virginia), Maryland (the House).
All the replies were opposed to the resolutions.
The substance of the most important of the replies is
here given:
STATE RIGHTS RESOLUTIONS 99
DELAWARE considered the resolutions "a very unjustifiable
interference with the general Government and constituted au
thorities of the United States and of dangerous tendency, and,
therefore, not a fit subject for the further consideration of the
general assembly."
RHODE ISLAND considered that the Constitution gave to the
Supreme Court of the United States the authority of deciding
on the constitutionality of any act of Congress, and that for any
State legislature to assume that authority would be: (1) blend
ing together legislative and judicial powers; (2) disturbing the
peace of the Union in case of a diversity of opinion between the
States, each having no resort but its own arm for vindicating
its opinions; (3) submitting most important questions of law to
less competent tribunals; and, (4) breaking the express terms
of the Constitution. Therefore the legislature declined officially
to consider the constitutionality of the so-called Sedition and
Alien laws, but expressed their private opinion that these laws
were within the powers delegated to Congress, and promotive of
the welfare of the United States. The legislature contemplated
with extreme concern the many evil and fatal consequences
which might flow from the very unwarrantable resolutions of
Virginia.
MASSACHUSETTS declared: (1) that, though it held sacred the
principle that consent of the people is the only pure source of
just and legitimate power, yet, being bound by solemn oath to
support the Constitution, it could not admit the right of a State
legislature to denounce the Federal Administration formed
under that Constitution to deal exclusively with national con
cerns; (2) that recourse to measures of extremity upon ground
less or trivial pretexts had a strong tendency to destroy all
rational liberty at home, and to weaken the nation abroad;
(3) that the Constitution had not made the State legislatures
judges of Federal acts, their proper course in case of grievance
being to propose an amendment to the Constitution; and, (4)
that the course proposed by Virginia would either reduce the
Constitution to a mere cipher with the form and pageantry of
authority without the energy of power, or, in the conflict of
jurisdictions, weary the people into submission to a dictator.
Therefore, while the legislature disclaimed its right to decide
upon the constitutionality of Federal acts, still, lest its silence
be construed as disapproving the laws complained against by
Virginia, it explicitly declared these not only constitutional, but
expedient and necessary.
The rights of aliens, it declared, were not particularly con-
100 GREAT AMERICAN DEBATES
templated in the Constitution, and they were entitled only to a
temporary protection while they yield a temporary allegiance,
and, when they became dangerous to the public safety, this
protection ought to be withdrawn by Congress, which had not
only the right but the duty to protect the nation from internal
as well as external foes. The nation was menaced by war; the
removal of aliens was, therefore, a wise precaution, justified by
the usages of nations, and it had been properly committed to
the national Executive.
The Sedition Act is equally defensible. Though the Virginia
convention had recommended the amendment to the Constitution
forbidding Congress to abridge freedom of speech or of the
press, they surely did not expect that the amendment was to be
construed by the convention.1
Plainly the Sedition Act did not abridge the liberty of
speech or of the press, which was to utter truth, not propagate
falsehood and slander. The act provided that courts and juries
should decide whether or not the liberty of speech and press
had been abused, and they thereby upheld this liberty rather
than infringed upon it.
The Constitution assigns certain duties to the Federal Gov
ernment. This would imply also the grant of means and power
necessary to execute the duties. Yet the grant is not left to
implication, but explicitly stated in the eighth section of Arti
cle I.
The Sedition Act provides a means for the Federal Govern
ment to execute the duty of national protection, which means
is not specified in the Constitution, though the duty is. Analogi
cally, the Constitution made no specific provision for the pro
tection of the Supreme Court against disturbance of its pro
ceedings, and the court has enforced its implied right to protect
itself by adopting the practice of the common law on this point.
Congress could, however, have constitutionally passed a statute
effecting this protection.
The President is impeded in performing his constitutional
duties by scandalous misrepresentations tending directly to rob
him of the public confidence. Therefore Congress has provided
him in the Sedition Law the means to perform his duties effi
ciently.
Had the Constitution withheld from Congress power to
provide such means for the execution of government, then
1 This position is based on the principle that, in construing an equivocal
statute, law does not concern itself with the intention of its drafter or even
its mover, but with that of the majority which passed it.
STATE RIGHTS RESOLUTIONS 101
it would have made the officials responsible for effects,
without giving them control over the causes which naturally
produce these effects, and so it would have failed of achieving
its object as stated in its preamble.
Sedition and conspiracy were punishable by the common law
in the courts of the United States before the act in question was
passed by Congress. The act is, in certain respects (such as the
mitigation of punishment, etc.), an amelioration of the com
mon law.
The act is for the benefit of officers only in their character
of agents of the people, and, therefore, it is for the benefit of
the people, and not the injury of them.
The act is necessary because an audacious and unprincipled
spirit of falsehood and abuse has been too long unremittingly
exerted for the purpose of perverting public opinion, and
threatened to undermine and destroy the whole fabric of gov
ernment.
These opinions have been endorsed by our constituents in
reelecting those Representatives who voted for the measures
complained of by Virginia. And the citizens of Massachusetts
are not indifferent to their constitutional rights; on the con
trary, they see that their freedom, safety, and happiness require
that they should defend the Government and its constitutional
measures against the open or insidious attack of any foe, whether
foreign or domestic.
Lastly, the legislature of Massachusetts feel a strong convic
tion that the several United States are connected by a common
interest which ought to render their union indissoluble; and
this State will always cooperate with its confederate States in
rendering that union productive of mutual security, freedom,
and happiness.
PENNSYLVANIA answered Kentucky that the people of the
United States had vested the construction of the Constitution
in the Federal judiciary, and, therefore, the declaration by a
State that any Federal act was void was a revolutionary measure
destructive of the purest principles of our State and national
compacts.
It considered as abhorrent the statements of the Kentucky
legislature that " confidence is everywhere the parent of despot
ism," and that "free governments are founded in jealousy."
Such a principle, it said, cut all social bonds, and renewed the
state of savagery. Governments truly republican and free are-
eminently founded on confidence; their execution is committed
to representatives in whom the people trust. No portion o£
102 GREAT AMERICAN DEBATES
the people can assume the province of the whole, nor resist its
combined will.
The Alien and Sedition Laws are expressive of this combined
will — a part of the system of defence against the seduction and
aggressions of France. They are terrifying only to the flagitious
and designing. Loud and concerted appeals against them made
by a minority to the passions of the people will produce effects
more violent than useful.
Pennsylvania answered Virginia briefly to the same effect:
Her resolutions tended to excite unwarrantable discontents and
to destroy the very existence of our Government.
NEW YORK answered through its senate that, "not perceiv
ing that the rights of the particular States have been violated,
nor any unconstitutional powers assumed by the general Gov
ernment, the senate cannot forbear to express the anxiety and
regret with which they observe the inflammatory and pernicious
sentiments and doctrines which are contained in the resolutions
of the legislatures of Virginia and Kentucky — sentiments and
doctrines no less repugnant to the Constitution of the United
States, and the principles of their union, than destructive to the
Federal Government, and unjust to those whom the people have
elected to administer it."
Therefore the senate deemed it a duty to bear unequivocal
testimony against such sentiments and doctrines explicitly and
to declare their incompetency to supervise the acts of the gen
eral Government.
CONNECTICUT explicitly disavowed the principles contained
in the Virginia resolutions, and it justified the Federal acts
of which the resolutions complained as rendered necessary by
the exigency of the country and passed by the constituted au
thorities.
NEW HAMPSHIRE, which had received also the Kentucky
resolutions, expressed a firm resolution to defend the Con
stitutions of the United States and the State against every
aggression, foreign or domestic, and to this end to support the
measures complained of. The Federal judiciary, it said, and not
a State legislature, is the proper tribunal to determine the con
stitutionality of Federal laws.
If the legislature of New Hampshire, for mere speculative
purposes, were to express an opinion on the so-called "Alien
and Sedition Bills," that opinion would be that these acts are
constitutional, and, in the present critical stage of our country,
highly expedient. As to this constitutionality and this ex
pediency the legislature of Virginia was referred to the clear
STATE RIGHTS RESOLUTIONS 103
demonstrations on these points made by members of its minority
(see page 94).
VERMONT resolved that the resolutions of Virginia were un
constitutional in their nature and dangerous in their tendency,
and that the Federal judiciary and not a State legislature was
the proper body to decide on the constitutionality of Federal
acts.
THE SUPPLEMENTAKY RESOLUTION OF KENTUCKY
The legislature of Kentucky replied to the answers of
the several States, made to its own resolutions and those
of Virginia, by a supplementary resolution, passed
unanimously in the House on November 14 and con
curred in by the Senate on November 22, 1799.
The following is a condensation of the preamble and
full text of the resolution:
The Kentucky legislature would be faithless to themselves
and their constituents if they silently acquiesced in the answers
to their former resolutions by the other States, Virginia ex-
cepted. It is needless to attempt to expose the unconstitution
ally of the Alien and Sedition Acts more fully than we have
done; we must lament, however, the unfounded suggestions and
uncandid insinuations of the replies to our decent and temperate
expressions of opinion. Faithful to the true principles of the
Federal Union, unconscious of any designs to disturb the har
mony of that Union, and anxious only to escape the fangs of
despotism, the good people of this commonwealth are regardless
of censure or calumniation. Lest, however, those of our fellow-
citizens throughout the Union who so widely differ from us on
those important subjects should be deluded by the expectation
that we shall shrink from the principles contained in those
resolutions; therefore
Resolved, That this commonwealth considers the Federal
Union, upon the terms and for the purposes specified in the
late compact, conducive to the liberty and happiness of the sev
eral States: That it does now unequivocally declare its attach
ment to the Union, and to that compact, agreeably to its obvious
and real intention, and will be among the last to seek its dissolu
tion : That, if those who administer the general Government be
permitted to transgress the limits fixed by that compact, by a
total disregard to the special delegations of power therein con-
104 GREAT AMERICAN DEBATES
tained, an annihilation of the State governments, and the crea
tion upon their ruins of a general consolidated government will
be the inevitable consequence : That the principle and construc
tion, contended for by sundry of the State legislatures, that
the general Government is the exclusive judge of the extent of
the powers delegated to it, stop not short of despotism — since the
discretion of those who administer the government, and not
the Constitution, would be the measure of their powers: That
the several States who formed that instrument, being sovereign
and independent, have the unquestionable right to judge of the
infraction : and, That a nullification by those sovereignties of all
unauthorized acts done under color of that instrument is the
rightful remedy: That this commonwealth does, under the most
deliberate reconsideration, declare that the said Alien and Sedi
tion Laws are, in their opinion, palpable violations of the said
Constitution ; and, however cheerfully it may be disposed to sur
render its opinion to a majority of* its sister States in matters
of ordinary or doubtful policy, yet, in momentous regulations
like the present, which so vitally wound the best rights of the
citizen, it would consider a silent acquiescence as highly crim
inal: That, although this commonwealth, as a party to the
Federal compact, will bow to the laws of the Union, yet it does,
at the same time, declare, that it will not now, or ever here
after, cease to oppose, in a constitutional manner, every attempt
at what quarter soever offered, to violate that compact: And,
finally, in order that no pretext or arguments may be drawn
from a supposed acquiescence on the part of this commonwealth
in the constitutionality of those laws, and be thereby used as
precedents for similar future violations of the Federal compact,
this commonwealth does now enter against them its solemn
protest.
The Virginia legislature referred the answers of the
various States to a committee of which James Madi
son was chairman. During the session of 1799-1800
the committee made its report, which had been drafted
by Madison.
This celebrated paper l is a long and exhaustive argu
ment in defence of the legislature's resolutions, discuss
ing them in their order. The following is an abstract of
the report:
1 It would seem that no praise was too extravagant for admirers of
Madison in speaking of this Keport. It was called the ll Bible of Democ
racy/' the "Second Declaration of Independence/' etc.
STATE RIGHTS RESOLUTIONS 105
REPORT ON THE VIRGINIA RESOLUTIONS
JAMES MADISON
The first of the resolutions is in the words following:
"Resolved, That the General Assembly of Virginia doth unequivocally
express a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution of this State, against every aggression,
either foreign or domestic; and that they will support the Government of
the United States in all measures warranted by the former."
No unfavorable comment can have been made on the senti
ments here expressed. In their next resolution —
"The General Assembly most solemnly declares a warm attachment to
the union of the States, to maintain which it pledges all its powers; and
that, for this end, it is their duty to watch over and oppose every infrac
tion of those principles which constitute the only basis of that Union, be
cause a faithful observance of them can alone secure its existence and the
public happiness."
No question can arise among enlightened friends of the
Union as to the duty of watching over and opposing every in
fraction of those principles which constitute its basis, and a
faithful observance of which can alone secure its existence and
the public happiness thereon depending.
The third resolution is in the words following:
"That this Assembly doth explicitly and peremptorily declare, that it
views the powers of the Federal Government, as resulting from the com
pact to which the States are parties, as limited by the plain sense and in
tention of the instrument constituting that compact — as no further valid
than they are authorized by the grants enumerated in that compact; and
that, in case of a deliberate, palpable, and dangerous exercise of other
powers, not granted by the said compact, the States who are parties thereto
have the right, and are in duty bound, to interpose, for arresting the
progress of the evil, and for maintaining, within their respective limits,
the authorities, rights, and liberties appertaining to them."
In all the contemporary discussions and comments which the
Constitution underwent, it was constantly justified and recom
mended on the ground that the powers not given to the Govern
ment were withheld from it ; and that, if any doubt could have
existed on this subject, under the original text of the Constitu
tion, it is removed, as far as words could remove it, by the
12th Amendment,1 which expressly declares "that the powers
not delegated to the United States by the Constitution, nor pro
hibited by it to the States, are reserved to the States respectively,
or to the people."
1Now the tenth.
106 GREAT AMERICAN DEBATES
The resolution proceeds to infer "That, in a case of a dan
gerous exercise of unwarranted powers, the States have the right
to interpose for arresting the progress of the evil and for
maintaining their rights within their respective limits/'
It is a plain principle, founded in common sense, illustrated
by common practice, and essential to the nature of compacts,
that, where resort can be had to no tribunal superior to the
authorities of the parties, the parties themselves must be the
rightful judges in the last resort, whether the bargain made has
been pursued or violated. The States, being the parties to the
constitutional compact, and in their sovereign capacity, it fol
lows of necessity that there can be no tribunal above their au
thority to decide, in the last resort, whether the compact made
by them be violated; and, consequently, that they must them
selves decide, in the last resort, such questions as may be of
sufficient magnitude to require their interposition. In the case
of ordinary conventions between different nations, where by
the strict rule of interpretation a breach of a part may be
deemed a breach of the whole — every part being deemed a con
dition of every other part, and of the whole — it is always laid
down that the breach must be both wilful and material to justify
an application of the rule. But, in the case of an intimate and
constitutional union like that of the United States, the inter
position of the parties can be called for by occasions only
deeply and essentially affecting the vital principles of their
political system.
Therefore the resolution specifies the object of the inter
position to be arresting the progress of the evil of usurpation
and maintaining the authorities, rights, and liberties appertain
ing to the States as parties to the Constitution.
If the deliberate exercise of dangerous powers, palpably
withheld by the Constitution, could not justify such actions,
there would be an end to all relief from usurped power.
But it is objected that the judicial authority is to be regarded
as the sole expositor of the Constitution in the last resort. The
answer to this is that the judicial department is not the last
resort in relation to the rights of the parties to the constitutional
compact, from which the judicial, as well as the other depart
ments, hold their delegated trusts. On any other hypothesis
the delegation of judicial power would annul the authority
delegating it; and the concurrence of this department with the
others in usurped powers might subvert forever and beyond
the possible reach of any rightful remedy the very Constitution
which all were instituted to preserve.
STATE RIGHTS RESOLUTIONS 107
The fourth resolution stands as follows:—
"That the General Assembly doth also express its deep regret that a
spirit has, in sundry instances, been manifested by the Federal Govern
ment to enlarge its powers by forced constructions of the constitutional
charter which defines them; and that indications have appeared of a design
to expound certain general phrases (which, having been copied from the
very limited grant of powers in the former Articles of Confederation, were
the less liable to be misconstrued) so as to destroy the meaning and effect
of the particular enumeration which necessarily explains and limits the
general phrases, and so as to consolidate the States, by degrees, into one
sovereignty, the obvious tendency and inevitable result of which would be
to transform the present Republican system of the United States into an
absolute, or at best a mixed monarchy. "
The Alien and Sedition Laws are among those alluded to as
indicating the spirit of the Federal Government. The phrases
construed are : ' ' Providing for the common defence and general
welfare" [Preamble].
In Article VII of the "Articles of Confederation" these
phrases are used, yet they were not broadly construed as now.
By their incorporation in the Constitution it was evidently the
intention of the framers of the new instrument to perpetuate
the old construction. Indeed, if any breadth of construction
is permitted, it may go to the fullest extent, and our whole
government be changed from a Federal system to a consolidated
one, and, in time, become a despotism.
The true and fair construction of this expression, both in the
original and existing Federal compacts, appears to the committee
too obvious to be mistaken. In both the Congress is authorized
to provide money for the common defence and general welfare.
In both is subjoined to this authority an enumeration of the
cases to which their powers shall extend. Money cannot be
applied to the general welfare otherwise than by an application
of it to some particular measure conducive to the general wel
fare. Whenever, therefore, money has been raised by the gen
eral authority, and is to be applied to a particular measure, a
question arises whether the particular measure be within the
enumerated authorities vested in Congress. If it be, the money
requisite for it may be applied to it. If it be not, no such
application can be made. This fair and obvious interpretation
coincides with, and is enforced by, the clause in the Constitu
tion which declares that "no money shall be drawn from the
treasury but in consequence of appropriations made by law."
An appropriation of money to the general welfare would be
deemed rather a mockery than an observance of this constitu
tional injunction.
108 GREAT AMERICAN DEBATES
The resolution next in order is contained in the following
terms : —
"That the General Assembly doth particularly protest against the pal
pable and alarming infractions of the Constitution, in the two late cases of
the 'Alien and Sedition Acts,' passed at the last session of Congress; the
first of which exercises a power nowhere delegated to the Federal Govern
ment; and which, by uniting legislative and judicial powers to those of the
Executive, subverts the general principles of free government, as well as the
particular organization and positive provisions of the Federal Constitution;
and the other of which acts exercises, in like manner, a power not delegated
by the Constitution, but, on the contrary, expressly and positively forbidden
by one of the amendments thereto — a power which, more than any other,
ought to produce universal alarm, because it is leveled against the right
of freely examining public characters and measures, and of free communi
cation among the people thereon, which has ever been justly deemed the
only effectual guardian of every other right. ' y
Mr. Madison repeated the already familiar argu
ments against the Alien and Sedition acts. His argu
ments against the Sedition Act largely consisted of a
reply to the doctrine advanced in its behalf that "the
common or unwritten law" — which Madison character
ized as "of vast extent and complexity, embracing al
most every possible subject of legislation, both civil and
criminal" — forms a part of Federal law.
In the state prior to the Revolution it is certain that the
common law made a part of the colonial codes. But it was
not the same in any two of the colonies ; in some the modifications
were materially and extensively different. There was no com
mon legislature by which a common will could be expressed in
the form of a law; nor any common magistracy by which such
a law could be carried into practice. The will of each colony,
alone and separately, had its organs for these purposes.
This stage of our political history furnishes no foothold for
the patrons of this new doctrine.
Did, then, the principle or operation of the great event
which made the colonies independent States imply or introduce
the common law as a law of the Union?
The fundamental principle of the Revolution was that the
colonies were coordinate members with each other, and with
Great Britain, of an empire united by a common executive sov
ereign, but not united by any common legislative sovereign.
The legislative power was maintained to be as complete in each
American Parliament as in the British Parliament. The asser
tion by Great Britain of a power to make laws for the other
STATE RIGHTS RESOLUTIONS 109
members of the empire, in all cases whatsoever, ended in the
discovery that she had a right to make laws for them in no
cases whatsoever.
Such being the ground of our Revolution, no support or
color can be drawn from it for the doctrine that the common
law is binding on these States as one society. The doctrine, on
the contrary, is evidently repugnant to the fundamental prin
ciples of the Revolution.
The Articles of Confederation are the next source of in
formation on this subject.
This instrument does not contain a sentence or a syllable
that can be tortured into a countenance of the idea that the
parties to it were, with respect to the objects of the common
law, to form one community. No such law is named, or implied,
or alluded to as being in force, or as brought into force by that
compact. No provision is made by which such a law could be
carried into operation; while, on the other hand, every such
inference or pretext is absolutely precluded by Art. 2, which
declares ''that each State retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right, which
is not by this Confederation expressly delegated to the United
States in Congress assembled."
Is this exclusion revoked and the common law introduced
as national law by the present Constitution of the United States ?
The only part of the Constitution which seems to have been
relied on in this case is the 2d section of Art. 3 : " The judicial
power shall extend to all cases in law and equity, arising under
this Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority."
It has been asked what cases, distinct from those arising
under the laws and treaties of the United States, can arise
under the Constitution other than those arising under the com
mon law, and it is inferred that the common law is, accordingly,
adopted or recognized by the Constitution.
The expression "cases in law and equity" is manifestly con
fined to cases of a civil nature, and would exclude cases of
criminal jurisdiction. Criminal cases in law and equity would
be a language unknown to the law.
The succeeding paragraph in the same section is in harmony
with this construction. It is in these words: "In all cases
affecting ambassadors, or other public ministers, and consuls,
and those in which a State shall be a party, the Supreme Court
shall have original jurisdiction. In all the other cases [including
cases of law and equity arising under the Constitution] the
110 GREAT AMERICAN DEBATES
Supreme Court shall have appellate jurisdiction, both as to law
and fact.
Once more: The amendment last added to the Constitution
[Xlth] deserves attention as throwing light on this subject.
"The judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted
against one of the United States by citizens of another State, or
by citizens or subjects of any foreign power." As it will not
be pretended that any criminal proceeding could take place
against a State the terms law or equity must be understood as
appropriate to civil, in exclusion of criminal cases.
From these considerations it is evident that this part of the
Constitution, even if it could be applied at all to the purpose for
which it has been cited, would not include any cases whatever
of a criminal nature, and, consequently, would not authorize
the inference from it that the judicial authority extends to
offences against the common law as offences arising under the
Constitution.
It is further to be considered that, even if this part of the
Constitution could be strained into an application to every
common-law case, criminal as well as civil, it could have no
effect in justifying the Sedition Act, which is an act of legis
lative and not of judicial power; and it is the judicial power
only of which the extent is denned in this part of the Con
stitution.
There are two passages in the Constitution in which a de
scription of the law of the United States is found. The first
is contained in Art. 3, Sect. 3. The second is contained in the
second paragraph of Art. 6. The common law is not expressed
in the enumeration of either passage.
In aid of these objections the difficulties and confusion in
separable from a constructive introduction of the common law
would afford powerful reasons against it.
Is it to be the common law with or without the British
statutes ?
Is the law to be different in every State, as differently modi
fied by its code ; or are the modifications of any particular State
to be applied to all?
Questions of this sort might be multiplied with as much ease
as there would be difficulty in answering them.
These consequences, flowing from the proposed construction,
furnish other objections equally conclusive.
If it be understood that the common law is established by
the Constitution, it follows that no part of the law can be altered
STATE RIGHTS RESOLUTIONS 111
by the legislature. Such of the statutes already passed as may
be repugnant thereto would be nullified; particularly the Sedi
tion Act itself, which boasts of being a melioration of the com
mon law ; and the whole code, with all its incongruities, barbar
isms and bloody maxims, would be inviolably saddled on the
good people of the United States.
Should this consequence be rejected, and the common law be
held, like other laws, liable to revision and alteration by the
authority of Congress, it then follows that the authority of
Congress is coextensive with the objects of common law; that
is to say, with every object of legislation; for to every such
object does some branch or other of the common law extend.
The authority of Congress would, therefore, be no longer under
the limitations marked out in the Constitution. They would
be authorized to legislate in all cases whatsoever.
In the next place, as the President possesses the executive
powers of the Constitution, and is to see that the laws be faith
fully executed, his authority also must be coextensive with every
branch of the common law. The additions which this would make
to his power, though not readily to be estimated, claim the most
serious attention.
This is not all : it will merit the most profound consideration
how far an indefinite admission of the common law, with a lati
tude in construing it equal to the construction by which it is
deduced from the Constitution, might draw after it the various
prerogatives, making part of the unwritten law of England.
The English constitution itself is nothing more than a composi
tion of unwritten laws and maxims.
In the third place, whether the common law be admitted as
of legal or of constitutional obligation, it would confer on the
judicial department a discretion little short of a legislative
power. It would remain with the same department to decide
what parts of the common law would, and what would not, be
properly applicable to the circumstances of the United States.
In the last place, the consequence of admitting the common
law as the law of the United States, on the authority of the in
dividual States, is as obvious as it would be fatal. As this law
relates to every subject of legislation and would be paramount
to the constitutions and laws of the States, the admission of it
would overwhelm the residuary sovereignty of the States, and,
by one constructive operation, new-model the whole political
fabric of the country.
It is, indeed, distressing to reflect that it ever should have
been made a question whether the Constitution, on the whole
112 GREAT AMERICAN DEBATES
face of which is seen so much labor to enumerate and define the
several objects of Federal power, could intend to introduce in
the lump, in an indirect manner, and by a forced construction
of a few phrases, the vast and multifarious jurisdiction involved
in the common law — a law filling so many ample volumes; a
law overspreading the entire field of legislation; and a law
that would sap the foundation of the Constitution as a system
of limited and specified powers.
Mr. Madison continued:
Is, then, the Federal Government, it will be asked, destitute
of every authority for restraining the licentiousness of the press,
and for shielding itself against the libelous attacks which may
be made on those who administer it?
The Constitution alone can answer this question. If no such
power be expressly delegated, and if it be not both necessary
and proper to carry into execution an express power ; above all,
if it be expressly forbidden, by a declaratory amendment to the
Constitution — the answer must be, that the Federal Government
is destitute of all such authority, this being left to the States.
The resolution next in order is as follows: —
"That this State having, by its convention, which ratified the Federal
Constitution, expressly declared that, among other essential rights, 'the
liberty of conscience and of the press cannot be canceled, abridged, re
strained, or modified, by any authority of the United States'; and, from
its extreme anxiety to guard these rights from every possible attack of
sophistry and ambition, having, with other states, recommended an amend
ment for that purpose, which amendment was in due time annexed to the
Constitution, it would mark a reproachful inconsistency, and criminal de
generacy, if an indifference were now shown to the most palpable violation
of one of the rights thus declared and secured, and to the establishment
of a precedent which may be fatal to the other."
Similar recommendations having proceeded from a number
of other States, and Congress having, in consequence thereof,
and with a view to extend the ground of public confidence, pro
posed, among other declaratory and restrictive clauses, a clause
expressly securing the liberty of conscience and of the press;
and Virginia, having concurred in the ratifications which made
them a part of the Constitution, it will remain with a candid
public to decide whether it would not mark an inconsistency and
degeneracy if an indifference were now shown to a palpable
violation of one of those rights — the freedom of the press ; and to
a precedent therein which may be fatal to the other — that free
exercise of religion.
STATE RIGHTS RESOLUTIONS 113
The two concluding resolutions only remain to be examined.
They are in the words following: —
"That the good people of this commonwealth, having ever felt, and con
tinuing to feel, the most sincere affection for their brethren of the other
States, the truest anxiety for establishing and perpetuating the union of
all, and the most scrupulous fidelity to that Constitution which is the pledge
of mutual friendship and the instrument of mutual happiness, — the Gen
eral Assembly doth solemnly appeal to the like dispositions in the other
States, in confidence that they will concur with this commonwealth in de
claring, as it does hereby declare, that the acts aforesaid are unconstitu
tional ; and that the necessary and proper measures will be taken, by each,
for cooperating with this State, in maintaining, unimpaired, the author
ities, rights, and liberties reserved to the States respectively, or to the
people.
"That the Governor be desired to transmit a copy of the foregoing
resolutions to the executive authority of each of the other States, with a
request that the same may be communicated to the legislature thereof;
and that a copy be furnished to each of the Senators and Eepresentatives
representing this State in the Congress of the United States. ' '
It has been said that it belongs to the judiciary of the
United States, and not the State legislatures, to declare the
meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Gov
ernment are not warranted by the Constitution is a novelty
neither among the citizens nor among the legislatures of the
States.
Nor can the declarations of either be deemed an assumption
of the office of the judge. They are expressions of opinion, un
accompanied with any other effect than what they may produce
on opinion, by exciting reflection. The expositions of the judi
ciary, on the other hand, are carried into immediate effect by
force. The former may lead to a change in the legislative ex
pression of the general will — possibly to a change in the opinion
of the judiciary ; the latter enforces the general will, while that
will and that opinion continue unchanged.
And, if there be no impropriety in declaring the unconsti
tutionally of proceedings in the Federal Government, where
can there be the impropriety of communicating the declaration
to other States and inviting their concurrence in a like declara
tion? The legislatures of the States have a right to originate
amendments to the Constitution by a concurrence of two-thirds
of the whole number in applications to Congress for the purpose.
In respect to the Alien and Sedition Laws the legis
latures of the States might have made a direct repre-
VII— 8
114 GREAT AMERICAN DEBATES
sentation to Congress, with a view to obtain a rescinding
of the two offensive acts, or they might have represented
to their respective Senators in Congress their wish that
two-thirds thereof would propose an explanatory amend
ment to the Constitution, or two-thirds of themselves,
if such had been their opinion, might, by an application
to Congress, have obtained a convention for the same
object.
The extensive view of the subject, thus taken by the
committee, has led them to report to the House, as the
result of the whole, the following resolution:
Resolved, That the General Assembly, having carefully and respectfully
attended to the proceedings of a number of the States, in answer to the
resolutions of December 21, 1798, and having accurately and fully reex-
amined and reconsidered the latter, find it to be their indispensable duty
to adhere to the same, as founded in truth, as consonant with the Consti
tution, and as conducive to its preservation; and more especially to be
their duty to renew, as they do hereby renew, their PROTEST against Alien
and Sedition Acts, as palpable and alarming infractions of the Constitu
tion.
SPECIFIC PURPOSE OF JEFFEBSON AND MADISON
The uniform and emphatic repudiation by the other
States of the resolutions of Kentucky and Virginia effec
tually disposed of the primary purpose of Jefferson and
Madison in inspiring them, namely, the calling of a
national convention of the States, which should, by a
three-fourths vote, as provided by the Constitution, pass
an amendment to that instrument enabling three-fourths
of the States to declare void any action whatsoever of
the Federal Government, whether this be a law passed
by Congress, an order of the Executive Department, or a
ruling of the Supreme Court.
To Jefferson and Madison it seemed that the Federal
Government was preparing to seize supreme control over
the States, such as Parliament exercised over Great
Britain. The Alien and Sedition Laws of Congress
were similar to those passed by Parliament in 1792-3,
and the principle involved in them might be extended
to making the Federal Government, like Parliament,
the final judge of its own powers. Even a convention
STATE RIGHTS RESOLUTIONS 115
of the States to change the Constitution might be pro
hibited as seditious, and therefore it was well to sound
the States in time upon calling such a convention.
While Jefferson and Madison failed in their specific
purpose to persuade the States to call a national con
vention to amend the Constitution in the way which
has been indicated they succeeded beyond their greatest
expectation in their general purpose, which was to in
duce the Federalists to "show their hand" and to
sound an alarm to the people of the States based upon
this revelation. They thus laid the foundation of a
"campaign of education" which resulted in the acces
sion of the Kepublican party to national power and its
uninterrupted retention of this for a quarter of a cen
tury.
Eesolutions expressive of sentiments similar to those
of the Kentucky and Virginia resolutions were passed
by various States in later years. Professor Johnston
notes, as instances of the revenges of time that, in the
reversal of political control in the State governments,
Pennsylvania and Massachusetts passed resolutions of
this character and that Virginia replied in emphatic re
pudiation of their sentiments.
The denial by Jefferson and Madison, in the resolu
tions, that the Federal courts had a common-law juris
diction in criminal matters is, probably, best replied to
by Associate- Justice Joseph Story in his "Commentaries
on the Constitution."
THE COMMON LAW JURISDICTION OF THE FEDERAL, COURTS
JUSTICE JOSEPH STORY
The question, whether the common law is applicable to the
United States in their national character, relations, and govern
ment, has been much discussed at different periods of the gov
ernment, principally, however, with reference to the jurisdic
tion and punishment of common law offences by the courts of
the United States. It would be a most extraordinary state of
things that the common law should be the basis of the juris
prudence of the States originally composing the Union; and
yet a government engrafted upon the existing systems should
116 GREAT AMERICAN DEBATES
have no jurisprudence at all. If such be the result, there is no
guide and no rule for the courts of the United States or in
deed for any other department of government in the exercise
of any of the powers confided to them, except so far as Con
gress has laid, or shall lay down, a rule. In the immense mass
of rights and duties of contracts and claims, growing out of the
Constitution and laws of the United States (upon which posi
tive legislation has hitherto done little or nothing), what is
the rule of decision, and interpretation, and restriction? Sup
pose the simplest case of contract with the Government of the
United States, how is it to be construed? How is it to be en
forced? What are its obligations? Take an act of Congress-
how is it to be interpreted? Are the rules of the common law
to furnish the proper guide, or is every court and department
to give it any interpretation it may please, according to its
own arbitrary will? My design is not here to discuss the sub
ject (for that would require a volume), but rather to suggest
some of the difficulties attendant upon the subject. Those read
ers who are desirous of more ample information are referred to
Duponceau on the "Jurisdiction of the Courts of the United
States"; to Tucker's Black. Comm. App. Note E, p. 372; to 1
Kent's Comm. Lect. 16, pp. 311 to 322; to the report of the
Virginia legislature of 1799-1800; to Rawn on the Constitu
tion, ch. 30, p. 258 ; to the North American Review, July, 1825 ;
and to Mr. Bayard's speech in the "Debates on the Judiciary"
in 1802, p. 372, etc.
As has been noted the controversy over the Alien
and Sedition Laws was chiefly instrumental in the elec
tion of Thomas Jefferson to the Presidency. In his
inaugural address (March 4, 1801) he thus announced
the principles upon which he would conduct his Admin
istration :
THE EOAD TO LIBERTY
FIRST INAUGURAL ADDRESS OF PRESIDENT JEFFERSON
About to enter, fellow citizens, on the exercise of duties
which comprehend everything dear and valuable to you, it is
proper you should understand what I deem the essential prin
ciples of our Government, and consequently those which ought
to shape its administration. I will compress them within the
narrowest compass they will bear, stating the general principle,
STATE RIGHTS RESOLUTIONS 117
but not all its limitations. Equal and exact justice to all men,
of whatever State or persuasion, religious or political ; peace,
commerce, and honest friendship with all nations, entangling
alliances with none; the support of the State governments in
all their rights, as the most competent administrations for our
domestic concerns, and the surest bulwarks against anti-repub
lican tendencies; the preservation of the general Government
in its whole constitutional vigor, as the sheet anchor of our
peace at home and safety abroad ; a zealous care of the right of
election by the people; a mild and safe corrective of abuses,
which are lopped by the sword of revolution where peaceable
remedies are unprovided ; absolute acquiescence in the decisions
of the majority, the vital principle of republics, from which is
no appeal but to force, the vital principle and immediate parent
of despotism; a well-disciplined militia, our best reliance in
peace, and for the first moments of war, till regulars may re
lieve them ; the supremacy of the civil over the military author
ity; economy in the public expense, that labor may be lightly
burdened ; the honest payment of our debts, and sacred preser
vation of the public faith ; encouragement of agriculture, and of
commerce as its handmaid ; the diffusion of information, and ar
raignment of all abuses at the bar of public reason ; freedom of
religion; freedom of the press; and freedom of person, under
the protection of the habeas corpus; and trial by juries impar
tially selected. These principles form the bright constellation
which has gone before us, and guided our steps through an age
of revolution and reformation. The wisdom of our sages and
blood of our heroes have been devoted to their attainment ; they
should be the creed of our political faith ; the text of civil in
struction, the touchstone by which to try the services of those
we trust; and should we wander from them in moments of er
ror or alarm, let us hasten to retrace our steps, and to regain
the road which alone leads to peace, liberty, and safety.
CHAPTER V
PBOTECTION OF ADOPTED CITIZENS
[THE KOSZTA AFFAIR]
President Pierce, in His Annual Message, Recounts the Facts of the Koszta
Affair — Correspondence on the Affair between Baron Hiilsemann, Aus
trian Charge d' Affaires, and William L. Marcy, American Secretary of
State — Resolutions of Thanks to Captain Duncan L. Ingraham, Who
Secured the Release of Koszta, Are Passed in the House of Representa
tives — Debate on the Resolutions: John Perkins, Jr. [La.], on the
Right of Expatriation; Tilt between Gilbert Dean [N. Y.] and John S.
Millson [Va.] on the Duty vs. the Right to Protect Koszta; David T.
Disney [O.] on the Distinction between Domiciliation and Allegiance.
THE Federalist policies in regard to immigrants
and alien citizens were broached again in the
Hartford convention of 1814 [see Vol. V, chapter
i], but with this exception there was no important
discussion in America concerning civil rights, unless
the subject of slavery be considered in this connection,
for the first half of the nineteenth century. The tradi
tional liberal policy toward immigrants, which prevailed
in the nearly continuous succession of Kepublican-Dem-
ocratic administrations during this period, and the de
sire of every statesman, Northern, Southern, Eastern,
or Western, to invite settlement and development of his
section, and so to increase its power in Federal politics,
placed the prospective citizen in a most advantageous
position. With each party bidding for his vote the
requirements for the elective franchise were reduced
to a minimum. Consequently the right or privilege—
whichever it be considered — was greatly abused, espe
cially by European expatriates (usually revolution
ists) who desired to continue their business abroad
under the protection of some nation powerful enough
118
THE KOSZTA AFFAIR 119
to resist the claims upon them of their former govern
ment. Accordingly they visited the United States,
made application for citizenship, and returned to Eu
rope trusting in the advantages of their new allegiance
and careless of the performance of its duties.
In the annual message of President Franklin Pierce,
December 6, 1853, appeared the following statement:
Martin Koszta, a Hungarian by birth, came to this country
in 1850, and declared his intention, in due form of law, to be
come a citizen of the United States. After remaining here
nearly two years, he visited Turkey. While at Smyrna, he was
forcibly seized, taken on board an Austrian brig-of-war, then
lying in the harbor of that place, and there confined in irons,
with the avowed design to take him into the dominions of Aus
tria. Our consul at Smyrna and legation at Constantinople in
terposed for his release, but their efforts were ineffectual. While
thus imprisoned, Commander Duncan N. Ingraham, with the
United States ship of war St. Loiiis, arrived at Smyrna, and,
after inquiring into the circumstances of the case, came to the
conclusion that Koszta was entitled to the protection of this
Government, and took energetic and prompt measures for his
release.1 Under an arrangement between the agents of the
United States and of Austria, he was transferred to the custody
of the French consul-general at Smyrna, there to remain until
he should be disposed of by the mutual agreement of the con
suls of the respective governments at that place. Pursuant to
that agreement he has been released, and is now in the United
States. The Emperor of Austria has made the conduct of our
officers who took part in this transaction a subject of grave
complaint. Regarding Koszta as still his subject, and claiming
a right to seize him within the limits of the Turkish Empire, he
has demanded of this Government its consent to the surrender
of the prisoner, a disavowal of the acts of its agents, and satis
faction for the alleged outrage. After a careful consideration
of the case, I came to the conclusion that Koszta was seized
without legal authority at Smyrna; that he was wrongfully de
tained on board of the Austrian brig-of-war; that, at the time
of his seizure, he was clothed with the nationality of the United
States; and that the acts of our officers, under the circum
stances of the case, were justifiable, and their conduct has been
fully approved by me, and a compliance with the several de
mands of the Emperor of Austria has been declined.
1 July 2, 1853.
120 GREAT AMERICAN DEBATES
For a more full account of this transaction and my views in
regard to it, I refer to the correspondence between the Charge
d' Affaires of Austria and the Secretary of State, which is here
with transmitted. The principles and policy, therein main
tained on the part of the United States, will, whenever a proper
occasion occurs, be applied and enforced.
The chief letters in the correspondence referred to
were one from Baron Hiilsemann, Austrian Charge
d' Affaires, to William L. Marcy, American Secretary of
State, written on August 29, 1853, and the Secretary's re
ply of September 26. Hiilsemann asked that the United
States " disavow the conduct of its agents . . . has
ten to call them to a severe account, and tender to Aus
tria a satisfaction proportionate to the outrage. "
Marcy 's answer defended the position of the United
States throughout on the grounds that Koszta had
ceased to be a citizen of Austria even by the law of
Austria; that when seized and imprisoned he was
already invested with the nationality of the United
States, and this government had therefore the right,
if it chose to exercise it, to extend its protection
to him; that from international law Austria could
derive no authority to obstruct or interfere with the
United States in the exercise of this right in effect
ing the liberation of Koszta, and that Captain Ingra-
ham's interposition for his release was, under the ex
traordinary circumstances of the case, right and proper.
The position taken by Secretary Marcy has since
been accepted by the authorities in international law.
The ringing letter of the Secretary met with uni
versal approbation from the American people, and con
tributed materially toward strengthening the President,
for Pierce had been harshly criticized by the " Hards, "
a faction of New York Democrats who cooperated with
the South, for appointing to the chief office in his cabi
net a man who belonged to the opposite faction, known
as the " Softs," who were prone to make political dick
ers with the Free Soilers. Captain Ingraham became
a popular hero for his prompt and decisive action in
the Koszta affair, and resolutions of thanks to him were
121
122 GREAT AMERICAN DEBATES
passed in the House of Representatives on January 11,
1854, by a vote of 174 to 9. In remarks upon the reso
lutions the points in international law which had been
raised in the Hiilsemann-Marcy correspondence were
ably discussed by John Perkins, Jr. [La.], Gilbert Dean
[N. Y.], John S. Millson [Va.], and David T. Disney,
[Ohio].
THE KOSZTA AFFAIB
HOUSE OF REPRESENTATIVES, JANUARY 11, 1854
MR. PERKINS. — Although I approve the doctrines con
tained in the letter of the Secretary of State, I do not admit
that the letter itself embodies any new principle. The secre
tary himself protests against this idea.
He says, speaking of nationality resulting from domicile:
"It is no new doctrine now for the first time brought into operation
by the United States; it is common to all nations, and has had the sanc
tion of their practice for ages; but it is new that, at this late period,
when the United States assert a claim to it as a common inheritance, it
should at once be discovered that it is a doctrine fraught with danger, and
likely to compromit the peace of the world."
The merit of the secretary 's letter is, however, greater to my
mind than if its doctrines were novel. I think it no light thing
that he has brought forward, in a bold and forcible manner, on
a highly proper occasion, a great principle of international law
that has been suffered to lie long dormant in our law books. As
early as 1817, in the case of Pizarro, 2d Wheaton, this doctrine
of nationality, resulting from domicile, was laid down in broad
terms by Judge Story, and concurred in by Judges Marshall,
Washington, Livingston, and Johnston. Secretary Marcy has
only given to it vitality by its application to persons as well as
property. There is no just reason for its being restricted, so
as to apply to one and not to the other.
The principle is broad enough for both, and that it has not
always been extended to protect both is attributable to the
watchful jealousy with which the monarchical governments of
Europe have sought to make perpetual the allegiance of the sub
ject. Recognizing, as we do in this country, the opposite doc
trine — the right of an individual to expatriate himself — the
reasoning of the secretary, and the conclusions of his letter, are
in harmony with the spirit of our institutions.
I think we have acquiesced long enough in European inter-
THE KOSZTA AFFAIR 123
pretation of the law of nations. For the last fifty years it has
been molded to suit the necessities of particular nations. At
this time it is practically little more than a code, conventional
in its character, for the protection of existing institutions — in
terpreted always against the individual, and in favor of the
government.
Sir, the time is coming when this country will be forced to
declare, in some degree, its independence of a code which is
framed to justify tyranny in almost all its forms, and which is
too often made a screen for the perpetration of great national
crime. When we do declare our independence of the perver
sions of this code, I believe the act will be attended with moral
results almost equal to those which attended the establishment
of our colonial independence.
MR. DEAN. — I desire, as one of the Committee on Foreign
Affairs — to which this subject was referred — and as a member
of this House, to say here in my place, distinctly and unequivo
cally, that the object of this testimonial is not merely a personal
compliment to Captain Ingraham, highly as he deserves it ; that
compliment he has received by the united voice of the civilized
world, by the unanimous declaration of the press of this coun
try and the liberal press of Europe ; but hero worship is no part
of our duty ; we are to legislate and to affirm principles. If we
pass these resolutions, as I trust we shall, while we thank the
gallant captain, we declare, as the representatives of the Amer
ican people, that we approve the act in the light of all its sur
rounding circumstances, and affirm those great principles of
natural and international law on which only it is to be justified.
We do more, we throw a light into the darkened firmament of
Europe, blazing a meteor for an hour, and shining a fixed star
forever.
I must dissent from the remark which has been made dur
ing the debate — that Congress is not the place to enunciate
principles. So thought not the signers of the Declaration of
Independence; but they, "in Congress assembled," proclaimed
their principles and to their maintenance pledged fortune, life,
and honor ; and we, by adopting the proposition now before us,
will announce and affirm a principle of vital importance.
I will now state what I understand by these resolutions :
I understand the first resolution — and that is the one which
contains the whole declaration of principles — to contain three
distinct propositions. The first is the right of an individual to
expatriate himself, to choose his own place of residence, irre
spective of the accident of birth, and a distinct denial of the
124 GREAT AMERICAN DEBATES
right of a prince to track his subject into foreign countries, and
there claim jurisdiction over him. The assertion that the seiz
ure of Koszta was "illegal" is a direct and positive enunciation
of this principle. The second proposition is the right of this
Government to afford protection to such persons as choose to
come here and adopt this country as their place of residence.
The third proposition is the approval by Congress of the act
of Captain Ingraham, and the act of our Government in sus
taining him. If there is any man in the House who is not pre
pared to take this new step, who is not now ready to assume
this position, I trust that he will vote against the resolutions.
I believe the time has come when we should, and when we must,
concur in these principles. The executive branch of the Gov
ernment has already done so in the letter of Secretary Marcy,
which has so often been referred to — a letter which, let me say,
is destined to an immortality almost equal to Magna Charta or
the Declaration of Independence, if it is not sacrilege to com
pare anything to the Declaration of Independence. This letter,
sir, is another Magna Charta — one that has long been needed —
an American Magna Charta for adopted citizens.
MB. MILLSON. — It seems to me that the friends of this reso
lution unnecessarily create prejudice against it, by attributing
to the letter of the Secretary of State a position which he never
meant to assume. My friend from New York has just told us
that the position taken by the Secretary of State in his letter
was one novel and hitherto unknown in international history.
Now, I wish very briefly to call his attention to a paragraph in
that letter, in which I think he will discover that the secre
tary did not regard his position as at all novel or unknown.
"The vindication of these agents is not placed upon any principle new
to the international code, or unknown in the practice of enlightened na
tions. These nations do not hesitate, in the exercise of the right of pro
tection, to extend it to persons (not always subjects according to their
municipal laws) who are clothed with their nationality; and in some in
stances they have carried this right of protection to limits which this Gov
ernment would not venture, because it would not feel justified, to approach;
nor have any of these nations been disposed to abandon the exercise of
this right from a timid apprehension that it might possibly bring them
into an occasional collision with other powers. ' '
Mr. Marcy never said that the Government of the United
States were bound to protect Martin Kozsta, but in twenty in
stances he has said that they had the right to protect him ; and
in saying this he expressly says that he asserts a principle not
new to the international code. And the whole experience of
THE KOSZTA AFFAIR 125
the present day justifies him in saying it. At this very mo
ment it is a question under considerations by England and
France whether they shall not interpose, in the exercise of their
sovereign discretion, for the protection of the Sultan of Tur
key. Yet no gentleman will pretend that the Sultan is a citizen
of either power, or that there is any obligation resting upon
them, except in their own discretion, to afford him any such
protection.
MR. PARKER. — The secretary says:
' ' This right to protect persons having a domicile, though not native-
born or naturalized citizens, rests on the firm foundation of justice, and
the claim to be protected is earned by considerations which the protecting
power is not at liberty to disregard. ' '
I think this is conclusive upon this point.
MR. DEAN. — I had the letter of the secretary open, and
was about to read that precise sentence in reply to the remarks
of my friend from Virginia. But he misappehends me or the
secretary. I was speaking of the doctrine of allegiance, or sub
jection as it exists in Europe, as contradistinguished from our
laws on that subject, and Secretary Marcy, in the passage which
the gentleman has cited, was commenting upon an entirely dif
ferent subject — the right exercised by all civilized nations to
extend protection to those whom they do not regard as sub
jects or citizens, but who, for commercial purposes or otherwise,
have been invested with their nationality.
The Austrian Charge d' Affaires on this subject says:
"In our opinion, Koszta has never ceased to be an Austrian subject.
Everything combines to make the Imperial Government persist in this
estimate of the matter. The laws of his country are opposed to Koszta 'a
breaking asunder of his own accord, and without having obtained permis
sion to expatriate himself from the authorities of that country, the ties of
nationality which bind him to it."
The American Secretary of State, in reply to this assertion,
answers :
"There are great diversity and much confusion of opinion as to the
nature and obligations of allegiance. By some it is held to be an inde
structible political tie, and though resulting from the mere accident of
birth, yet forever binding the subject to the sovereign; by others it is
considered a political connection in the nature of a civil contract, dis
soluble by mutual consent, but not so at the option of either party. The
sounder and more prevalent doctrine, however, is that the citizen or sub
ject, having faithfully performed the past and present duties resulting
from his relation to the sovereign power, may at any time release himself
126 GREAT AMERICAN DEBATES
from the obligation of allegiance, freely quit the land of his birth or adop
tion, seek through all countries a home, and select anywhere that which
offers him the fairest prospect of happiness for himself and his posterity. ' '
Here, then, is a distinct issue between the two governments
on this question. Captain Ingraham carried out the American
doctrine, and we, by approving his conduct, affirm this princi
ple and indorse the action of the Government in sustaining
him.
But we are told that, though this Government may have the
right, it is not its duty to protect persons standing in the same
relation which Koszta occupied. This cannot be, for allegiance
and protection are reciprocal — the former proceeds from the
latter; and the American law upon this subject is most beauti
fully and forcibly stated in the following extract from the sec
retary 's letter:
" Whenever, by the operation of the law of nations, an individual be
comes clothed with our national character, be he a native born or natural
ized citizen, an exile driven from his early home by political oppression, or
an emigrant enticed from it by the hopes of a better fortune for himself
and his posterity, he can claim the protection of this government, and it
may respond to that claim without being obliged to explain its conduct to
any foreign power; for it is its duty to make its nationality respected
by other nations, and respectable in every quarter of the globe."
My colleague from New York [Mr. Maurice] refers me to
another portion of the letter, in which the secretary asserts that
Koszta, on the ground of domicile, had a right to ask, and that,
on that ground, it was the duty of the Government to afford,
protection as long as his character of a domiciliated resident
continued. In this he is clearly right, and sustained by both
reason and authority.
When gentlemen say that the act of Ingraham is one of
doubtful propriety, I tell them that upon that point the Ad
ministration take issue with them, and for the verdict appeal
to the country. That there may be no misapprehension, and
that no one may vote for this resolution ignorant of the facts,
what did Captain Ingraham do ? And here let me pause to say
a word in reply to the objection raised by the gentleman from
Tennessee [Mr. Jones] . The gentleman wants to know why we
do not tender this vote of thanks to Mr. Brown, the American
consul, instead of to Captain Ingraham ? If the gentleman will
look at the letter of Mr. Hiilsemann, he will see that Mr. Brown
directed, or rather advised, Captain Ingraham to demand the
release of Koszta. Well, he did demand his release, but what
THE KOSZTA AFFAIR 127
use would it have been if he had stopped there? The letter of
his instructions beyond this was silent. But Captain Ingraham,
having demanded the release of Koszta, went further, took the
means necessary to make that demand effectual, and told the
representative of the Austrian Government — the commander of
the Hussar — on the morning of the 2d July, that unless the
man was delivered up by four o 'clock in the afternoon he would
take him by force. It was his gallant, prompt, and judicious
conduct in going further that awards the great merit to Cap
tain Ingraham, and which has invested his name and the flag
he bore with such peculiar glory.
Mr. Hiilsemann says that he then drew his ship up in line
of battle, and prepared to carry out his threat. I will say, fur
ther, that the captain of the Austrian brig waited until within
ten minutes of four o'clock before he undertook to release his
prisoner. Koszta was in the hold of his vessel, and in irons.
At that time, having made previous threats of shooting him,
they sent down for him. He was afraid that they were taking
him to be shot, for he had been told in the morning that such
would be his fate if the demand of Ingraham was persisted in.
It was a sublime sight — one which has rarely been equaled in
history — to see Captain Ingraham standing on the deck of his
vessel, with her guns pointed, the torches lighted, and he await
ing, with watch in hand, to give the word of command to fire;
the Austrian officers, however, just before the expiration of the
time, said, hurriedly, to the prisoner, "We want you no -longer
here"; and he was delivered just three minutes before four
o 'clock.
The gentleman inquired the other day whether, if Koszta
had not been given up,> Ingraham would have been justified in
firing into 4he Austrian vessel? I answer promptly that he
would; and, if he had done it, the whole American people, and
the laws of nations, would have sustained him. He was at that
time the representative of our nation, and demanding the re
lease of a man who claimed the protection of our Government,
and who had in his possession papers which entitled him to that
protection.
There is another ground upon which the American people
will justify Captain Ingraham, and that is this: Our diplo
matic representatives, whether properly or not, have been
charged with remissness in asserting the rights of Americans
traveling abroad. They have waited, and they have doubted.
Ingraham, in this case, the moment he received the word from
our agent that there was a man claiming the protection of the
128 GREAT AMERICAN DEBATES
American Government in imprisonment, did not send home to
search the parish registers to know where he was born, nor trace
out the branch of the genealogical tree from which he claimed
to spring. He did not wait to examine the records of all the
courts to see whether he had declared his intention to become a
citizen — or to ascertain the genuineness of the papers he bore,
or inquire into the power of the court to grant them. Is an
American commander to do so in any case? On the contrary,
when the right is claimed by one whom he is satisfied is entitled
to it, he should get nine points of the law — that is, possession —
leaving the question involved to be afterward settled between
the two governments. That is the manner in which our repre
sentatives should act. And the conduct of Ingraham, acting as
he has, promptly and successfully, upon these principles, has
given us respect abroad, and dignity and consideration every
where.
I was reading but yesterday an extract from a letter re
ceived from one of the officers of the St. Louis, which stated
that when Captain Ingraham entered the harbor of Alexandria
he was received amid the joyful ringing of bells and firing of
cannon; and that when he entered the theater the American
flag was flying, and he was received with cheers. Such tributes
as these, sir, make an American proud of his country, and will
have their effect in the army and navy. No single battle has
ever added such luster to the American name. It has given
us a respect abroad which could not be secured by the most suc
cessful naval engagement.
We are now to take our position in reference to the rights
of our citizens abroad. And those who favor the passage of
these resolutions mean to send word to all that it is the delib
erate voice of the American Congress that the rights of an
American citizen abroad shall be guarded as vigilantly as if he
were upon our own soil ; and, if necessary, that the whole force
of the Government shall be invoked to afford him protection —
that the deck of an American ship is sacred; and the spot on
which a person entitled to the protection of our Government
stands, whether at home or abroad, is as inviolable as the sanc
tuary of the gods.
ME. DISNEY. — It has been remarked, as well in the Koszta
letter as upon this floor, that the Secretary of State set forth
on that occasion no new doctrine ; that he only referred to prin
ciples known to the law of nations. To this I must give my
dissent. I do not so read it. For the purposes of commerce,
the laws of nations have recognized the fact that an individual
THE KOSZTA AFFAIR 129
may acquire a domicile in a country alien to the one of his
origin. They have recognized that, for commercial purposes,
he may be clothed with the nationality of a country alien to
the one to which he owes his allegiance; and the error of the
secretary consists in this — he has confounded political with
commercial law. That, while he finds the language which he
uses running through the books upon the subject, yet he has
omitted to notice and recognize the distinction of which I have
spoken, that the nationality which is given by domicile is con
ferred for commercial purposes. This distinction is palpably
and unmistakably laid down in the very authorities which the
secretary himself cites; and in this nationality the individual
must be limited to such acts as are not incompatible with his
allegiance.
As the property of a country constitutes a part of its
strength, so the legitimate right of a country in time of war is
to weaken its enemy by the destruction and capture of its prop
erty ; and the courts of England and France, as well as those of
our own country, have held that in the execution of this right
it is not to be permitted to an individual, under cover of a dif
ferent nationality, though a resident of the country, to protect
the property which is the product of the hostile soil.
The whole difficulty in this case has arisen from confound
ing political with commercial law — from confounding commer
cial relations with the right and duty of an individual, as a
subject; and I use the word " subject" not in contradistinction
to the term which we use in this country — that of " citizen "-
but to designate the relations between the governed and the
government. I am inquiring into the political relations of the
individual under the government. The right and duty of an
individual under a government, viewed in his political rela
tions to that government, and the rights of that individual to
ward that government, in his commercial transactions, in re
gard to the property of the country in which he is a resident,
are different and separate things. There are two sorts of al
legiance. The books of this country and Europe recognize
them with entire distinctness. The temporary allegiance grow
ing out of a domicile, and connected with the commercial trans
actions of the country; the personal duty while within the
jurisdiction; and the permanent allegiance growing out of the
duties of the citizen in the abstract, without regard to his com
mercial relations and his connection with the property of the
country, which reach beyond the jurisdiction of the country.
Permanent allegiance imposes upon an individual the obligation
VII— 9
130 GREAT AMERICAN DEBATES
to support, defend, and obey the Government, whether at home
or abroad. Temporary allegiance imposes upon the individual
the necessity of obeying the laws of the country while he is
within the jurisdiction of the country within which he is resid
ing, within which he domiciliated, provided they are not in
compatible with the obligations he owes to the country to which
his permanent allegiance is due. This is a distinction which
the Secretary of State has overlooked. It is an important one,
vast and mighty in its consequences.
Take the case of Koszta to illustrate this: while he remained
within the limits of the Republic, with an intention to remain
permanently here, he owed temporary allegiance to the Gov
ernment, and was entitled to protection within its jurisdiction.
But if he had left these shores without the intention of return
ing, no sooner had he quitted the dock at New York than he
would have been divested of all his obligations of temporary
allegiance to this Government, and this Government would have
been relieved from all obligations in respect to his protection.
They were under obligations to protect him in his property
and in his relations to his property, whether within or without
the jurisdiction of the United States, but not to protect the in
dividual, in his political relations, outside of the jurisdiction
of the country, on account of any claim which he may have
acquired in his political relations to the institutions of the coun
try during his residence here.
But, sir, before we can decide whether Martin Koszta was
entitled to any privileges even of domiciliation, we must first in
quire into the intention of the party in leaving our shores —
whether it was for temporary purposes merely. He left, as we
understand, with the intention of returning to this country.
What, then, was the position he occupied? To that question
my reply is that he occupied precisely the position of a British
subject residing — domiciliated — as a merchant in New York,
who leaves the country and takes a voyage to France, to accom
plish purposes connected with his business. Now, sir, while he
is there, in the heart of France, he is an American merchant,
but a British subject — with a temporary allegiance to the
United States, but a permanent allegiance to Great Britain.
Martin Koszta, in commercial matters, would have been as an
American merchant who was temporarily in Smyrna; but
though occupying such relations he might have been an Aus
trian subject beside. Such is the doctrine of the law. It was
the right and duty of the United States to protect his property
as an American merchant ; but in his political relations, as soon
THE KOSZTA AFFAIR 131
as he left our shores, he was absolved from all allegiance to this
Government, and the Government at the same time was absolved
from obligations to protect him while he remained without the
jurisdiction of the country. As an individual, Koszta owed no
allegiance to the American Government; and, as I before ob
served, when he left our shores the American Government was
relieved from the correlative duty of affording him its protec
tion. He stood in the attitude of an American citizen, so far
as property was concerned ; and as such the American Govern
ment was placed under obligations to protect him in his prop
erty. His right to such protection would have been recognized
in any of the courts of Europe, or in any courts of our own
country.
"With regard to the policy of adopting the doctrine that an
individual coming here without any assumption of allegiance
creates a duty upon the part of this Government to extend to
him its protection, the idea is utterly absurd; and if this Gov
ernment attempts to defend such a position it will ere long be
compelled to retract and retrace its steps. Our Government is
but one among a community of nations.
The very authorities which the secretary has consulted, and
whose language may be found in every page of this document,
have laid down the doctrine for which I contend, and the limi
tations which he has entirely overlooked — that is, that the na
tionality of which he speaks is acquired for commercial pur
poses, and can impose no duty incompatible with allegiance.
In the case of the Venus (8 Cranch), the Supreme Court is
remarkably explicit: "What are the consequences to which
this acquired domicile may legally expose the person entitled
to it, in the event of a war between the government under
which he resides and that to which he owes a permanent al
legiance?" is the question asked, and to this the court re
plies, that "to his native country he cannot be considered an
enemy, in the strict sense of the word; yet he is deemed such
with reference to the seizure of so much of his property con
cerned in the trade of the enemy as is connected with his resi
dence. It is found adhering to the enemy. He is himself ad
hering to the enemy, although not criminally so, unless he en
gages in acts of hostility against his native country"; that is
to say, against his permanent allegiance. Grotius is quoted to
the same point — 563. The domiciliated party, says the court,
in the same case, * ' are bound by such residents to the society of
which they are members, subject to the laws of the State, and
owing a qualified allegiance thereto. They are obliged to de-
132 GREAT AMERICAN DEBATES
fend it, with an exception in favor of a subject in relation to
his native country. ' '
But Judge Marshall was unwilling to go even to the extent
which the majority of the court assumed:
"I think [said he in the same case] I cannot be mistaken when I say
that, in all the views taken of this subject by the most approved writers
on the law of nations, the citizen of one country residing in another is not
considered as incorporated in that other, but is still considered as belonging
to that society of which he was originally a member."
"For commercial purposes [says the judge], the merchant is considered
as a member of that society in which he has his domicile. " " The policy
of commercial nations receives foreign merchants into their bosom, and
permits their own citizens to reside abroad for the purposes of trade, with
out injury to their rights or character as citizens." "Nor will they hastily
construe such residence into a change of national character, to the injury
of the individual."
I am asked if the repeal of the prohibitory clause in rela
tion to aliens going abroad during their probation does not in
volve an obligation to protect them while they are abroad ? To
this I answer that I suppose that the repeal of that clause
merely places an alien where he would have been if that clause
had never been enacted. It goes only to his capability to be
come a citizen.
This country is now occupying a position among the nations
of the earth vastly more important than what she has hereto
fore done. And proud as we are, and just in proportion as
we are proud of the glory, and the honor, and the renown, and
dignity, and the reputation of this Republic, we will be chary
of putting the country in a position which may inflict here
after a stain upon that reputation and renown. I say, for this
Government, exalted as she is in character, and developed as
she is in strength, to lay down doctrines from which, in the
future, she will be compelled to recede would be a stain upon
that character; and it is to avoid a position of the kind that I
have felt myself called upon to direct the attention of the House
and the country to the doctrines which have heretofore been
entertained, not only by our own Government, but by every
government in Europe.
CHAPTER VI
NATIVISM
[THE KNOW-NOTHING MOVEMENT]
Else of the "Know Nothing" Party — Debate in the House of Representa
tives on the Party and Its Principles: in Favor, Nathaniel P. Banks
[Mass.]; Opposed, William S. Barry [Miss.].
SINCE Tammany Hall, the local Democratic organ
ization of New York City, largely recruited its
membership from immigrants, in conferring citi
zenship on these the officials in charge of naturalization
in the city, being members of the Hall, winked at the
grossest violations of the law. These abuses finally be
came so glaring that in 1835 a new party arose in oppo
sition to them, which called itself the American Repub
lican.
Its growth was rapid: in two years it elected the
mayor of New York. The movement spread to Phila
delphia, where the same abuses of the naturalization
laws existed, and by 1844 it had secured six Congress
men from these two cities. Then it suddenly dwindled,
and in the succeeding Congress, when it assumed the
name of Native American, it had but one Representa
tive (who came from Philadelphia). However, it re
vived again after the Presidential election of 1852, when
the Whigs (who received few accessions from the for
eign-born population) had become embittered by their
overwhelming disaster and the prospect of still greater
defeats at the hands of the swelling numbers of the
Democracy, and were ready to form any new political
combination which should cut off recruits from the dom
inant party.
By this time the organization had taken the form of
133
134 GREAT AMERICAN DEBATES
a secret fraternity. Its name was said to be "The
Sons of 76, " or "The Order of the Star-Spangled Ban
ner, " though its members were pledged by oath not to
reveal its real name, and were instructed to reply to all
inquiries concerning the same, "I don't know," whence
arose the popular designation of the party as "Know-
No thing. " Its purpose was apparent: the restriction,
so far as possible, of American citizenship and political
preferment to those persons born in this country, with
especial exclusion of Eoman Catholics. Its favorite
countersign was an order which General Washington
is reported (on uncertain authority) to have given on a
critical occasion during the Eevolution : ' ' Put none but
Americans on guard to-night. "
On June 17, 1854, in the same year in which the Ee-
publican party was organized, the Know-Nothings
formed a constitution under the name of the American
party, the contents of which, though officially considered
secret, soon transpired. This proscribed from office-
holding not only all foreign-born persons, but also na
tive Americans who were members of the Eoman Cath
olic Church, to whose hierarchical tendencies and not its
religious beliefs objection was made. Justification of
this position was found in the facts that Brownson's
Review and the Freeman's Journal, the leading Eoman
Catholic papers of the country, asserted the right of
the Church to dictate and review the acts of public
executives and representatives, and that dignitaries of
the Church, such as Archbishop John Hughes of New
York, demanded that Eoman Catholic parochial schools
be supported by the public funds. The controversy over
public aid to the parochial schools continued to be a
State issue (particularly in New York) for many years.
Thomas Nast, the cartoonist, most vigorously attacked
the "Eoman Catholic hierarchy " for its opposition to
the democratic principle of divorce of Church and State
in the school question and other related issues.
The Eoman Catholic bishops of New York also de
manded that Church property be placed in their hands,
although the constitution of the State required that all
135
136 GREAT AMERICAN DEBATES
religious bodies be incorporated and that their property
be held by trustees. This demand was resisted by a
number of Roman Catholic congregations, and Cardinal
Bedini was sent over by the Pope in 1853 to settle the
difficulty. Now this nuncio had aided in suppressing a
revolution in Bologna, one of the patriots being exe
cuted. Accordingly he was stigmatized as "Ugo Bassi's
executioner, " and was insulted in a number of cities
where he appeared in public. He decided in favor of
the bishops in the controversy over Church property,
and, when the trustees resisted the transfer, excom
municated these, whereupon they petitioned the State
legislature, complaining that the penalty had been in
curred because of their fidelity to the law. The legisla
ture upheld the trustees, although eight years after
ward the law was amended so that the bishops obtained
a virtual victory.
In the State elections of 1854 the American party
carried Massachusetts and Delaware and made a strong
showing in New York. In the next year it gained the
legislatures of New Hampshire, Rhode Island, Connec
ticut, New York, California, Kentucky, an.d Maryland,
and was beaten only by small majorities in a number of
Southern States. Encouraged by this success it pre
pared in the presidential campaign to oppose to the
anti-slavery issue of the rival new party, the Repub
lican, that of nativism, or opposition to foreign influence
in American politics.
On February 21, 1856, in secret convention at Phila
delphia, the American party adopted a platform contain
ing the following principles :
" (3) Americans must rule America; and to this end native-
born citizens should be selected for all State, Federal, and mu
nicipal offices. (9) A change in the laws of naturalization,
making a continued residence of twenty-one years necessary for
future citizenship. (12) The enforcement of 'all laws' until
repealed or decided unconstitutional. (13) Opposition to
Pierce 's administration for its expulsion of 'Americans' from
office and for its reopening sectional strife by repealing the
Missouri Compromise."
THE KNOW-NOTHING MOVEMENT 137
On February 22 the convention nominated Millard
Fillmore [N. Y.] for President and Andrew J. Donelson
[Tenn.] for Vice-President. These nominations, though
not the platform, were ratified by the Whig national
convention held at Baltimore on September 17. The
issue of the party, however, could not replace that of
slavery in the minds of the people, and only Maryland
cast its votes (eight in number) for the candidates.
Thereafter the party speedily dwindled. In 1857-9 it
had five Senators and from fifteen to twenty Represen
tatives in Congress, and in 1859-61 two Senators and
twenty-three Representatives, mostly from the border
States. The Civil War completely killed the party, al
though its principles cropped out at times thereafter in
minor political organizations such as the American Pro
tective Association, known as the ' ' A. P. A. "
The new party formed the chief subject of discus
sion in the House of Representatives during the session
of 1854-55. The debate was inaugurated with an at
tack on the party by William S. Barry [Miss.] on De
cember 18, 1854, in a speech on * i Civil and Religious Tol
eration. " This was replied to on the same day by
Nathaniel P. Banks [Mass.].
THE KNOW-NOTHING PAKTY
HOUSE OF REPRESENTATIVES, DECEMBER 18, 1854
MR. BARRY. — This society, or association, known by the
name of "Know-Nothings," is one which has recently sprung
into existence. Its founders are unknown; its purposes are un
known, because the purposes avowed by those who are supposed
to belong to it — by those advocating it — are contradictory in
their character. These are to be deduced, not from authorized
avowals of those acknowledged to belong to the society, but
they are to be gathered by scraps, collected here and there from
the declarations of those who are suspected of being members,
or who have incidentally acquired information. It is not like
other political organizations here, avowing principles, and
meeting and daring the responsibility of the avowal. It is not
like other associations, which having principles believed to be
of vital importance to the country, their members are willing
138 GREAT AMERICAN DEBATES
to declare those principles, and to stand or fall with them. If,
then, in attempting to find out the purposes of this order, I
shall do injustice to it — if I shall ascribe to it that which its
advocates deny, let members upon this floor, if there be such
belonging to the order, rise and correct me. I shall be willing
to be supplied with the information — more willing, perhaps,
than they will be to give it.
This association appeals to that which is strong in every
country. It appeals to that feeling of nationality without
which a nation cannot exist as an independent government, but
which, at the same time, when kindled and maddened, may de
stroy all that is good in government, and subvert the very prin
ciples on which it was established. There is no nation in the
world in which this prejudice against foreigners cannot be
aroused; but the most beautiful and soothing effect of civiliza
tion, the loveliest influence of our own institutions, has been to
mollify this prejudice against those outside our borders, and to
bring the whole family of nations, as it were, into a common
brotherhood. According to the degree of a nation's civilization,
you will find this prejudice and hostility to foreigners. In pro
portion as a nation is elevated in its consciousness of power,
and in its knowledge of the high duties of civilization, will it
receive and treat with respect those who spring from a foreign
soil, or are reared under the influence of different ideas; as it
sinks in the scale of self-respect and civilization, in the same de
gree do you find this prejudice ; and as a nation is possessed of
a rabble instead of a people, it will be seen that its fury can be
aroused against all who cannot pronounce its shibboleth.
One of the most frequent justifications of this organization,
Mr. Chairman, is that there are secret associations of foreign
ers which must be counteracted in this manner. If such po
litical associations exist among the foreign population of this
country, it certainly seems a strange method to rebuke the er
ror by forming other associations, in which is embodied all that
is wrong in those we condemn. We give dignity and conse
quence to their conduct by imitating it, and lose all the advan
tage of honest principles by leveling our own conduct to the
standard of those we reprobate. If the foreigners have adopted
rules of action incompatible either with social order or political
rights, there can be no duty more consistent with pure philan
thropy or elevated patriotism than the attempt to correct their
error, and infuse into their minds juster views of the duties of
the citizen, both to his neighbor and to the State. We have
adopted the humane and tolerant opinion of Mr. Jefferson, the
great apostle of the Democratic party, and who infused into it
THE KNOW-NOTHING MOVEMENT 139
that generous and trusting faith in man, whether native or alien
born, which has been the germ of the chief differences between
the two great parties of the country, "That little is to be feared
from error, while reason is left free to combat it." The evils
that we see are not to be cured by persecution; the faggot and
the stake are exploded arguments; and having discarded the
more open, manly, and responsible instruments of torture, we
will not now turn to seize upon those which are secret, sinister,
and irresponsible.
Secret political associations have heretofore existed in op
pressed countries, for enlarging the rights of the citizens, and
limiting the powers of rulers; but this is the first, so far as ay
reading extends, in which the effort has been made, through
such an organization, to narrow the liberty of man, and graft
an oppressive principle upon the government. There has been
a strong repugnance to these political associations in this coun
try from the earliest period of our history. The society of the
Cincinnati, formed immediately after the Revolution, and com
posed of men fresh from the baptism of fire and blood in that
holy struggle, has decayed, and almost expired, under the dis
trust felt by the American people of secret associations, which
might be wielded to the detriment of the public liberty, or to
serve the ambitious purposes of those who would make the asso
ciation the instrument of their own advancement. The times
are not so improved, nor men grown so patriotic, that a power
which was denied by public opinion to the best patriots of the
purest days of the Revolution can safely be intrusted to the
hands of those who can show no peculiar claim, either of serv
ice or purity, to special confidence.
Mr. Chairman, two distinct questions are presented in ex
amining this subject — first, the purposes which the order has
in view ; and, secondly, the means by which they are to be ac
complished.
These purposes, as gathered from supposed members, from
newspapers professing to advocate the views of the order, and
from the writings and speeches of those affecting to sympathize
with it, are —
First. The exclusion of all foreigners from office.
Second. The extension of the term of naturalization from
five to twenty-one years, or some other period longer than five
years.
Third. The entire repeal of the naturalization laws.
Fourthly. The exclusion of Roman Catholics from office.
The means by which these things are to be accomplished are
140 GREAT AMERICAN DEBATES
a secret political association, in which the members are bound
by the most solemn oaths to obedience, to silence, and to mutual
fidelity.
I shall speak, first, of the organization, and then of the pur
poses the order has in view.
I can but believe that a secret political association is danger
ous to the rights of the people and to the stability of the Gov
ernment. In a free government, where every man is entitled
to declare his opinions, and there is no punishment for the
avowal of whatever doctrines he may entertain, what excuse can
there be for a resort to secrecy? When the people are op
pressed by a tyrannical government, and the penalty of death
awaits every man who dares to speak or think against the power
that is crushing him, there may indeed be an excuse for patriots
scheming in the darkness of midnight, and in the security of
unknown places of meeting; but, in the midst of a people who
enjoy every liberty that the most liberal institutions can bestow,
where freedom of thought, of speech, of action, and of the press
are the birthright of every man, how can a secret prescriptive
organization be allowed to take root, and rights, the dearest that
man can exercise, or government protect, be taken from the peo
ple by means so insidious and so fruitful of danger?
The Constitution allows no oaths to be forced upon the voter,
nor tests to be imposed in the use of that franchise. The sense
of duty and the personal stake of each man in the welfare of
the community were thought sufficient to insure its faithful ex
ercise. But this secret association attempts to bind men by the
most stringent oaths to exercise the right of voting only as cer
tain native patriots shall determine, in the secrecy, and perhaps
in the darkness, of midnight. The citizen who assumes these
oaths and obligations parts with his individual freedom, aban
dons his personal independence, and comes to the polls, not an
untrammeled voter, but a mere machine to carry out, by his
suffrage, the elections and the purposes which others — perhaps
against his consent — have determined on. He barters away his
freedom who makes any pledges or swears any oaths which im
pair his right to modify his ticket at any time prior to deposit
ing it in the ballot box. The electoral franchise is one which is
conferred on each individual who exercises it, and which he has
no right to trammel the free, judicious use of, by private oaths
and secret combinations ; and his duty is to his country and the
Constitution, not to midnight caucuses of ambitious and crafty
men, who glaze over their schemes of selfishness with well-
affected anxiety for the public good.
THE KNOW-NOTHING MOVEMENT 141
Here Mr. Barry quoted what was said to be the oath
of the society.
In my judgment, sir, a man who is a member of an estab
lished government, from which he receives the amplest protec
tion of person and property, and to which, in return, he owes
the amplest measure of fidelity and obedience, has not the moral
right to take such an oath as that I have quoted. He may as
well owe allegiance to a foreign sovereign, and be ready to obey
his commands, as assume obligations to any society of his coun
trymen which place him in collision with his own government.
So plain, and almost self-evident is this truth, that a year since
no one in this country could have been found to question it, as
no one will a year or two hence, when this bubble, with its tints
that delude some eyes, shall have passed into oblivion, with its
elder brothers, the Alien and Sedition Laws, and when the
public mind, which is now swayed from its self -poised equi
librium by a temporary excitement, shall have recovered its just
position.
The oath provides that the member shall "not, under any
circumstances, expose the name of any member of this order,
nor reveal the existence of such an organization. ' ' This portion
of the oath, perhaps, explains why those not in the order have
never met a man who confessed that he belonged to it. And,
sir, we have heard men deny connection with it, who we have
every reason to be satisfied were members. Has any man the
right to take an oath binding himself to the continuous state
ment of an untruth. Can that institution be good whose first
fruits are thus evil? No, sir; it is wrong, radically wrong.
Nor can the guilt of the deception be escaped by the flimsy
evasion that the real name of the order is not "Know-Noth
ing," and that, consequently, a man may safely say he does
not belong to one of that name, though he really is connected
with the order which the public have designated by that title,
and he well knows it is the one alluded to by the inquirer.
Since his intention is to deceive, he is responsible for the deceit.
Nor can he escape by the plea that the querist has no right to
put the question, and that he is, therefore, at liberty to disre
gard the truth in his answer. It is by no means certain that
each citizen has not the right to ask every other any question he
may see fit, in reference to public matters, without being liable
to the charge of inquisition or impertinence; and though the
person asked may have the choice of silence or speech, he is
under the common obligation that rests on all men, if he an-
142 GREAT AMERICAN DEBATES
swers at all, to tell the truth. No oaths sworn, however sol
emnly, nor with the direst penalties that a secret midnight asso
ciation ever devised, can discharge a citizen from the eternal
duty of veracity. The difficulties in respect to truthfulness, in
which a member is involved, arise from his oath to conceal the
existence of the order, and his own connection with it. The ob
ject seems to be to protect the members from the odium with
which secret political associations have been viewed in this
country, and to secure the benefits of such an organization,
while they escape the responsibility of a connection with it.
There is more of wily cunning than of republican frankness
and manhood in such a course.
But this secrecy necessarily destroys all confidence between
men. Till this new order sprang into existence, with its fright
ful demands upon the conscience of its members, there existed
among the citizens of our country such mutual trustfulness
that the statements of men of good character were received
without distrust upon all subjects; but since it has come to be
admitted that some men, of hitherto unquestioned veracity,
have falsely denied their connection with the order of the Know-
Nothings, and it has even been more than suspected that some
of those from whom we have a right to expect an especial
purity of life, and by whom we have been accustomed to be
taught that it is better to die than to stain our lips with un
truth, have taken the oath before quoted, which requires of
them conduct so much at variance with their teaching, it is not
to be wondered at that some have become skeptical of the exist
ence of human veracity. The whole social fabric rests upon the
belief of truth among men; and the strongest bond of faith in
an individual's truthfulness is the well-founded opinion that he
has never once voluntarily defiled his soul with falsehood. To
conceal effectually their connection with the order, the members
may be, and some possibly have been, driven to a line of con
duct, in my opinion, more reprehensible than a direct denial of
the truth — the acting of a protracted and systematic falsehood.
Having formerly belonged to the old "Whig and Democratic
parties, and not daring to excite suspicions, or to confirm those
already entertained, of their belonging to the Know-Nothings,
by separating themselves openly from their old friends, they
still affect to retain their interest in party action and party suc
cess, allow themselves to be treated as members of their old
parties, become possessed of information, which is given to
them, as they well know, on the belief of their being still faithful
to their former friends, and yet, while acting thus, they are
THE KNOW-NOTHING MOVEMENT 143
under oaths which bind them to different parties, different prin
ciples, and different candidates.
That this is no idle supposition of my own, as some credu
lous persons, who think that such things cannot be in a free
and manly country like our own, may be tempted to exclaim, I
will quote from the resolves of a Know-Nothing Council in
Brooklyn, New York. The preamble to those resolves declares
that "good men and true had already been nominated by the
great political parties of the State, the nomination of some of
whom was effected 'by the direct action of this order." If
any man, Whig or Democrat, had smuggled himself into a meet
ing of the other party, by pretending to belong to it, the judg
ment of all men would reprobate the act as perfidious and dis
graceful. The contempt of all honorable men would follow him
like a curse. What rule of morals can tolerate in members of
this order tliat which is condemned in all other parties? Their
first departure from sound principles in joining the order in
volves subsequent delinquencies to conceal it, and make it ef
fectual. If trade and commerce require good faith and sincer
ity in those who follow those callings, how much more are they
indispensable among those who are acting for the public, and
whose conduct may influence for years to come their country's
welfare.
It has been claimed, in support of the order, that both of
the old parties are corrupt, and that it was necessary to form
a new party, of purer principles and better material. An archi
tect who should pronounce both of two buildings which he had
examined unsound and unsafe in structure and detail would
hardly be thought reliable if he should attempt to construct
another edifice of the brick and stone which he had just con
demned as useless and unworthy. Yet this order assumes to
form, out of the corrupt members of the old parties, a society
of immaculate patriots. A few of the old partisans get together
and rate themselves above reproach, and then adopt such other
citizens, members of the old corrupt parties, as are willing to
unite in asserting the knavery of all other men and their own
purity. This Pharisaical assumption of superiority is worthy
of all rebuke and contempt. Those of this order supposed to be
in this House, I must say, in all courtesy, I cannot rank one
whit above the average of their fellow members in the qualities
of citizens or legislators. Self-canonized saints and self-elected
patriots are of questionable stuff. There is a spontaneous dis
trust of the assumption that arrogates to itself a Benjamin's
portion of the common stock of human virtue and excellence,
144 GREAT AMERICAN DEBATES
and the claim of impostors is usually extensive in proportion as
it is groundless.
In a free government, I hold, sir, that there is no right in
a portion of the people, whether a minority or a majority, to
adopt a secret political policy, or pursue it ~by secret means.
The commonwealth is the joint product of the thoughts and
wills of the people who compose it. They have risked their
mutual interests in a common venture. Counsel and service are
due from each to all. Whatever pertains to the common bene
fit is the proper subject of mutual deliberation. I, as a member
of society, may justly expect its protection in every right which
the laws or the Constitution give me — protection not only
against foreign invasion, but also against domestic violence;
against the man who assaults my person, or wrests my property
from me; but not a whit less against those who, by means of
secret cabals, midnight assemblages, unnatural oaths, and mali
cious combinations, would peril, impair, or destroy any one of
my civil or political rights. Society can protect me, can pro
tect itself against the effects of these secret political associa
tions, only by extirpating them. They are the fruits and the
offspring of revolution : putrid bodies which the thunder of an
archy lifts from the deep in which they slumbered.
All citizens, I think, sir, are under obligations of candor
and sincerity toward each other in matters political. I think
the very nature of a free government requires it of them. The
ballot of each voter is intended to be secret only so far as to
protect him against violence, or any undue influence in prepar
ing and casting it. This right to absolute freedom in perform
ing this high civil act is not clearer than the corresponding
obligation of every other man to refrain from all attempts to
disturb, oppress, or intimidate him in the exercise of it. But
when the ballot is put into the box, it ceases to be a mere pri
vate act, and becomes a part of the public history. An attempt
at concealment provokes inquiry, and justifies it. There can
be but two reasons for keeping a vote secret — timidity, if we
think ourselves right, or shame and conscious guilt, if we be
lieve ourselves wrong. And a man must be deficient in some of
the better qualities of citizenship who is willing to assign either
of them as an excuse for a secret vote. And the motives that
prompt the vote, since he has no right to be influenced by any
but those of the public good, are also proper subjects of inquiry,
and, if the voter be a man, of free and truthful answer. No
man ever cast a secret vote, even if his purpose were as kindly
a one as to avoid making a preference between rival friends,
THE KNOW-NOTHING MOVEMENT 145
but felt his self-respect lowered, and that he had not acted up
to the full dignity of citizenship. There is, and there should be,
no penalty attached to the exercise of the right of voting, but
the estimate which the public may attach to a man's character,
according as he is thought to have used his privilege well or
ill. It is simply an item going to make up the aggregate of
character. Nor should there be laws compelling him to declare
how he voted; in free countries, the great mass of men being
independent, in fact, as well as name, will spurn concealment
in the matter ; and I do not know, in all history, of more than
one inquisitorial attempt, by an ex post facto law, to compel
the citizen to declare for whom he had voted ; and this attempt,
so tyrannical, was made, not by foreigners, who, ignorant of the
genius of republicanism, might, unconsciously, have violated its
principles; nor by the old parties of the country who, im
mersed in senility and corruption, might be indifferent to the
forms of liberty, but by the conclave of patriots who assembled
in New York as a Know Nothing council, representatives of
those who are to regenerate America ; who, mourning the decay
of public spirit and the corruption of national virtue, have,
by self -election, and the imposition of their own hands, set
themselves apart for the work of reformation.
Public opinion is one of the most efficient restraints on
human action. The punishments of this world seem, with but
too many, more terrible than the retribution of that which is to
come. The criticism, the censure of men often restrain evil-
disposed persons, and an enlightened public opinion guides and
sustains the virtue of individuals. We find the action of po
litical parties is purest when it is most under the public eye;
and, as the veil of secrecy is thrown about it, there is a culpable
laxity of conduct. A private caucus, though there is no obli
gation of secrecy, is thought less free from corruption than a
public convention. Meetings of which there is no record but
the unsafe memory of those present are likely to be less judi
cious than those in which everything is recorded and published.
A railroad, or other corporation directory, which gives its pro
ceedings no publicity in a twelvemonth is the subject of dis
trust, and too often falls into downright knavery. These things
we all see and know; and yet it is maintained that it is pos
sible for an association, secret, irresponsible, its members un
known, and denying their connection with it, to select its can
didates and elect them, and to control the government of a
great country without danger to the rights of the people or of
corruption among the members. Where this secrecy begins, free-
Yli— 10
146 GREAT AMERICAN DEBATES
dom ends. When the streets of Paris streamed with blood;
when the guillotine was the only engine whose activity was not
palsied by the general terror that pervaded the land, the orders
that plunged France into such frightful calamities issued from
the midnight, secret, irresponsible association of the Jacobins.
A career that begins in religious and political proscription may
well end, like theirs, with the lamp-post and the guillotine.
The first avowed purpose of the order which I shall discuss
is the exclusion of foreigners from office. The pledge of the
member on entering the order is that "he will not vote or give
his influence for any man for any office in the gift of the people
unless he be an American-born citizen." A judicious man, it
seems to me, will hardly deny that it is equally criminal to do,
by indirection, as to do openly that which we are forbidden
under the Constitution. That instrument confers on alien-born
citizens a complete eligibility to seats in the House of Repre
sentatives and Senate, when the respective periods of age and
citizenship have been completed, as upon native-born citizens.
No man will deny that Congress possesses no power to add, by
law, to the age or period of citizenship fixed by the Constitu
tion, and that such a law would be unconstitutional and void.
Any attempt to do so would be an assault upon a right which
the framers of the Constitution thought of sufficient importance
to guard by a special provision, and I can see no distinction in
justice between attempting to rob them of the rights by a law
and by a secret association.
There is no obligation, in my judgment, to vote for a for
eigner to any office more than for any other citizen ; but there
is an obligation not to form a combination against him by which
he is to be disfranchised or stinted in the enjoyment of any
constitutional right.
If it be true that foreigners are less fit for office than native
citizens, it is a gross distrust of the national common sense to
suppose the people will not act upon it, and a poor commentary
upon public spirit that special oaths and the terrors of a
secret inquisition are needed to urge them up to the discharge
of an obvious duty. I cannot but believe that true policy and
justice are, in this case, harmonious. These foreigners are in
our midst ; they have come under our invitation, and have trusted
to the liberal spirit of the age and the generous provisions of
our laws and Constitution, and our purpose should be, by acting
up to the full measure of good faith, to encourage them to the
highest standard of republican citizenship. They are citizens,
with the right to vote, and policy dictates that they should
THE KNOW-NOTHING MOVEMENT 147
be so treated as soonest to nationalize them, that the peculiarities
of their birth, education, language, and ideas may be lost in
the character of our own people. There is no safety in a course
that excludes them from any right which is theirs by the Con
stitution and laws, and which induces them, from wounded
pride, to perpetuate the distinctions which separate them from
the native-born citizens.
Justice would teach us that foreigners should receive a share
of offices proportioned to their number, if the subject becomes
a matter of mathematical division; but it would be more fortu
nate for the peace of the country if the question of nativity and
religion were never raised, and if selections to office were made
according as Mr. Jefferson's strong questions are answered, "Is
he honest? Is he competent? If he faithful to the Constitu
tion?"
Second. The extension of the term of naturalization to
twenty-one years, or some other period longer than five years.
The intermingling of races here is one potent element of our
growth and success. Those nations have been foremost in the
world's history whose characters have been the amalgam of
the greatest variety of the best races of the earth. A constant
immigration of enough to produce variety, but not to perpetu
ate diversity, would, I believe, contribute to preserve and in
crease our vigor. But I wish to see no foreign settlements in
our country; no papers, schools, and school-books in a foreign
tongue ; no regions of country in which a traveler might fancy
himself on the banks of the Rhine, or the greensward of Ire
land. I desire our people to be homogeneous in language and
institutions; I would have the first generation of foreigners to
be the last, their children I would have American in tongue, in
education, in principle, and in law.
It is said that this extension is rendered necessary by the
abuses of the present system.
These abuses are chiefly through false naturalization papers
and false swearing. They exist, I am inclined to think, less
through any defect in the present laws than through the defect
in their enforcement. The use of false naturalization papers,
illegal voting, and the perjury attendant upon both are offences
against the laws of the State where they are committed; and
it is to the State tribunals that the citizens must look for re
dress and the vindication of their rights. There is no ground,
none whatever, to believe that grand juries would be more
active to find indictments under a new law than under the old
one, nor that petit juries would be more prompt to convict.
148 GREAT AMERICAN DEBATES
It is useless to cumber the statute book with laws which
there is not the public virtue to enforce. No law can execute
itself; it must have the agency of man to administer it, and it
is useless to attempt to make the barbarous severity of the
statute atone for the apathy of the people. If the evil exists
in the magnitude described, if offences are so many and pun
ishments so rare, the root of the evil would seem to lie deeper
than an imperfect statute. It cannot lie in the law merely,
for that would be pointed out and remedied ; nor in the officers
of the law, the juries, the attorneys, and the judges, for a whole
some public opinion would impel them to the discharge of their
duty; but it lies deeper; I fear it lies in a corrupted public
sentiment. Individuals dislike the labor and inconvenience with
which a prosecution is attended, and, after an ebullition of
temper and a few newspaper paragraphs upon election frauds,
the matter is allowed to drop. Another reason, perhaps, quite as
effectual, is that both parties in the cities have been engaged
in the disreputable work of procuring fraudulent votes, and
each fears to provoke inquiry into its own conduct by attempt
ing to expose the crimes of the other. But even if all the illegal
voting complained of were confined to foreigners, by whom is
the temptation to commit the offence offered ? Certainly by our
own native citizens; and it seems strange that the whole indig
nation is visited upon the foreigner, who is denounced as ''ignor
ant and corrupt," arid scarcely a censure is bestowed upon the
native who debauched him, and who, I suppose, by contrast, is
to be regarded as * ' intelligent and virtuous. ' '
But, Mr. Chairman, it seems to me that the cause of the
evil which is ascribed to the immigration of foreigners may be
justly sought for even further back than the condition of public
sentiment where it exists. As a state becomes more refined and
populous, the disparity in the condition of the people becomes
greater. The inequalities of wealth and social advantages are
more obvious; the rich become richer and the poor poorer. If
there be any method of preventing this result, political philos
ophy has not yet announced it ; and the evil has begun to be
felt in this country in our large cities. There is, in all of
them, a portion of the community, happily for us yet small,
who are sunk in vice and ignorance. As the population becomes
denser there will be accessions constantly to the number, and
in due time there will exist a class in this country, as in the
Old World, in which vice, and crime, and destitution will be
the hereditary condition. It is from this class, and those who
approach its condition, that the material for fraudulent voting
THE KNOW-NOTHING MOVEMENT 149
is drawn. So far as this class exists in our midst, a large
share of it, I believe, will be found among the foreign popula
tion; because they congregate about the cities, where the vice
of proletarianism mainly flourishes, and because the native popu
lation, from its superior intelligence and familiarity with the
mode of life here, has retained the more lucrative occupations,
leaving to the foreigner the humbler and cheaper ones, and
those which are first to suffer from revulsions in trade and com
merce. Population and production march on closely together;
there will not, for any great length of time, be a wide disparity
between the supply of food and the number of people to con
sume it. And when the amount produced and that requisite
for consumption are about equal, a slight decrease of the former,
or of the supply of labor by which it is to be produced, results
in poverty and starvation. Such is the state of things in the
greater part of Europe. Such, in a mitigated form, is getting
to be the condition of our larger cities. The accounts of the
destitution now prevailing in some of them among the honest
and industrious and the gloomy anticipations of the coming
winter are heartrending. Yet government has not caused it;
the tariff has not caused it; foreigners have not caused it; nor
even the present war, though that event may have precipitated
it. It is the effect of those mutations which are the inevitable
condition of existence, and which are brought about by the
whole variety of those perplexed causes which have produced
that result which we call "the present state of things." Our
very prosperity has been as effective in bringing it about as
any other cause. High excitements in the commercial world are
always followed by periods of languor and depression, and the
suggestions of quacks and their still more dangerous remedies
are alike to be discarded. Republican institutions can protect
us against unjust legislation, oppressive taxes, and guilty wars,
but they cannot secure us against the inexorable laws of trade,
commerce, and manufactures. It is, then, unjust to ascribe to
transient causes evils which appear inseparable from the struc
ture of civilized society.
But, sir, if all these evils were the result of fraudulent
voting, how would the mischief be remedied by extending the
period of probation from five to twenty-one years ? If five years '
delay is so irksome that the foreigner will risk the penalties of
fraudulent voting and perjury to escape it, it seems to me the
temptation would be multiplied fourfold by increasing the de
lay to twenty-one years.
So far as the extension of the period to twenty-one years is
150 GREAT AMERICAN DEBATES
a sentiment, a mere gratification of a feeling or a prejudice, it
is either above or beneath reason, but, as a statesman's remedy
for an existing abuse, it seems entirely incompetent and un
satisfactory.
The discussion of this subject is too portentous, too preg
nant with the high philosophy of races, population, and govern
ment, to be handled by those whose whole political pharmacy is
persecution, whose highest ambition is the ejection of an Irish
tide-waiter from his office, and the summit of their statesman
ship to combine the "isms" that are out against the Democrats
who are in. The real danger is that foreigners will congregate
in some States of the Union in such numbers, preserving the
language, manners, and traditions of the Old World, as to root
out the native population speaking the English tongue, and
that we may come to be a confederacy of States as foreign in
origin, in language, customs, institutions, and religion as are
the several nations combined by force under the sway of the
Emperor of Austria or the Czar of Russia. Nothing can tend
to accomplish this more speedily than proscription. If the for
eigner finds himself one of a degraded caste while living among
the native population, he will naturally seek those regions in
which his own countrymen are numerous, and a little more con
centration of the foreign population in some of the Northwest
ern States will give them an absolute numerical majority and
insure the control there. In such an event they would, of
course, retaliate the proscription under which they had suffered ;
they would, perhaps, become even as intolerant as the Know
Nothings, and permit no native-born citizen, nor the son of a
native, to vote or hold office; they would send naturalized for
eigners to represent them here in both Houses, as they would
have the constitutional right to do ; they would have their rela
tive weight in presidential elections, and the "foreign vote"
would then be something distinct and palpable for politicians
to intrigue after. No state of things could be more deplorable
than the war of races, of which this order is the beginning, and,
if it be not crushed at once by the honesty and common sense
of the people, it may give to our history a chapter as dark and
bloody as that of the English revolutions or of the religious wars
of the Huguenots and Catholics in France. You know, sir, that
this is the evil to be dreaded in the future, compared to which
all German anti- Sabbath societies, Irish riots, illegal voting,
and foreign military companies sink into utter insignificance,
and before which, as remedies, the extension of the term of
naturalization to twenty-one years and the Know Nothing rem-
THE KNOW-NOTHING MOVEMENT 151
edy of exclusion from office are but as bands of tow to devour
ing flames. Neither of these would diminish perceptibly the
number of immigrants; and, while the annual supply continues
or increases, any law which tends to perpetuate the distinction
of races will only make the ultimate danger more formidable.
The duty of excluding paupers, vagrants, convicts, and felons
is imperative ; and, if the evil be as great as is charged, the only
surprise is that we have allowed a public mischief of such grav
ity to exist so long. Laws, rigorous and effective, should be
enacted if such are not now on the statute book; and every
citizen who regards the public weal should unite heartily in
their enforcement.
The third remedy proposed is the repeal of the naturaliza
tion laws. But even this would not protect us from the influx
of foreigners, nor from the ill effects of their voting, in case
any of the States see fit to bestow that right upon them ; and,
if the naturalization laws should be repealed, or the term ex
tended to twenty-one years, under the influence of a temporary
excitement, the natural reaction of popular feeling would de
mand a restoration of the old law; or the right of voting and
other privileges of citizenship would be conferred by the States
upon their alien inhabitants. The power of each State, then, is
ample over its own ballot-box, and it can be approached only by
those on whom she confers the right. There is not a voter of
the Union who derives his power from the Federal Government ;
he may be naturalized under a law of Congress, and possess
all that such laws can bestow, yet never be permitted to cast a
vote or hold a State office in the Union. This is fortunate, as
the necessities of States are different. The evil is local, so should
the remedy be.
I do not deny — on the contrary, I affirm — the right of a
nation to impose such terms on the influx of foreigners as a due
regard to her own interest and safety requires. She is the sole
judge of the evil and the remedy. If there were just reason
to apprehend such an immigration from Europe or Asia as
would unduly crowd our people, impoverish our labor, or ex
haust our soil, I should advocate a policy more prompt and
adapted to the emergency than the ritual of the Know Noth
ings, or their clumsy imitation of the secrecy and persecution
of the Jesuits. We have the right, and I should favor its exer
cise in that extremity, to deny all foreigners admission, and I
would, in that case, have our coast present an iron front to the
tide of immigration as it does to the waves of the ocean, so long
as the danger existed. But I would appeal to the manly com-
152 GREAT AMERICAN DEBATES
mon sense of the people, and have our action, if any were taken,
wear all the dignity of national justice and self-defence, and
not the sinister aspect of a revengeful intrigue and midnight
cabal. I do not believe the time for such action has come;
and, if it were now thick upon us, the remedies of Know Noth-
ingism are poor, flimsy — wholly inadequate.
It cannot be denied that the policy of our Government has
been to encourage immigration. The vast amount of fertile
unoccupied territory, the number of canals to be dug, of rail
roads to be built, and all the variety of labor required in a new
country induced our ancestors to solicit foreign aid. The sur
plus labor and capital of Europe found employment here. Most
of the immigrants settled in the Northern and Northwestern
States, and it is owing to this addition to their native popula
tion that their numbers have increased faster than the Southern
States. These foreigners not only brought their strength to in
crease our productive industry, but the aggregate of money
they have introduced into the country has been very large;
many of them, being inferior in education and social advan
tages to our native population, turned to those occupations which
are almost solely physical, requiring vigor of muscle and strength
of constitution, leaving to the native population almost a mo
nopoly of the more scientific and remunerative branches of
industry. This population has furnished to the North a large
increase of capital. It has supplied capital with a cheaper
labor by increasing the amount of it. It has given greater
activity to manufacturers by adding several millions to the num
ber of consumers. It has strengthened the shipping interest by
an amount of passage money equal, it is said, to the whole ex
port freights of the country. The North could not have com
pleted one-tenth of her improvements and kept up her other
interests to their present extent without this foreign labor. Most
of these improvements at the South have been made by the
native labor and without materially diminishing the annual
supply of the staple productions of the country. As a section,
the North has reaped the benefits of this immigration, and it
will have to meet the consequences which flow from it. The
question of the organization of labor, its rights and duties, is
perhaps the most vexed one of all that disturb the body politic.
By immigration we are perhaps fifty years in advance of what
we should have been had increase in numbers been natural only.
The difficulties that attend our condition are not mainly at
tributable to the foreign origin of a part of the population, but
to the number of the population. If every foreigner were this
THE KNOW-NOTHING MOVEMENT 153
day removed from the country, and natives in equal numbers
substituted, the difficulties which exist now would be as great
then and substantially the same. It matters not where the popu
lation is born, if there is not work for them to do and they
have no accumulations in store, there will be want, misery, and
destitution. It results from the density of population and not
from its nativity. If the population of New York City were to
day wholly native, would the cessation of business, the partial
suspension of manufactures, trade, and commerce, afflict them
less sorely than it does the present mixed population? But
yesterday and there was labor for all, and, with labor, food
and contentment; to-day there is a deficient supply, and at
the same time a greater scarcity and dearness of the necessaries
of life. If there be any way to prevent these fluctuations in
business, and the suffering consequent upon them, it has never
yet been made known.
The last purpose to be achieved by the Know Nothings is
the exclusion of all Catholics from office. It is not to be denied
that there is diversity of opinion among the brethren of differ
ent sections. The order seems already to have fallen into the
most corrupt practice attributed to the old parties and to the
most corrupt class of the old politicians, that of varying its
creed with every change of latitude. In the infancy of its exist
ence it is already mature in its vices, and, with a most sur
prising harmony between the end and the means, it aims at
political and religious intolerance by seizing on every prejudice
and adopting every creed. The foreign Protestant is told that
the order strikes only at Catholicism, and the native Catholic is
assured that it interferes with no man's religion, but attempts
to limit the influence of foreigners.
In Louisiana Catholics are allowed to join the order, we are
told — and why? Because that denomination is too numerous
there to be assailed openly.
It is something that will, I dare say, excite surprise through
the civilized world, when it becomes known, that the people
of this country, who have been first to practice, in its fullest
extent, the great Christian doctrine of toleration, are engaged
in discussing whether or not the Government is safe while it
continues. With what show of justice or consistency can we
plead to the Catholic sovereigns of Europe for the toleration of
Protestantism in their dominions while we disfranchise our fel
low citizens of the Catholic faith? How can we ask them to
go forward in relaxing the fetters of opinion while we are
going backward? How dare we talk of freedom of conscience
154 GREAT AMERICAN DEBATES
when more than a million of our citizens are to be excluded
from office for conscience sake?
Yesterday to have argued in favor of religious toleration in
this country would have been absurd, for none could have been
found to deny or question it. But to-day there is a sect boast
ing that it can control the country, avowing the old papist and
monarchical doctrine of political exclusion for religious opinions'
sake. The arguments by which they sustain themselves are
those by which the Inquisition justified their probing the con
sciences, and burning the bodies, of men five hundred years
ago, and against which Protestantism has struggled since the
days of Luther. You, sir, and I, and all of us owe our own
right to worship God according to our consciences to that very
doctrine which this new order abjures; and, if the right of the
Catholic is first assailed and destroyed, you, sir, or another mem
ber who believes according to a different Protestant creed, may
be excluded from this House and from other preferment be
cause of your religious faith. The security of all citizens rests
upon the same broad basis of universal right. Confederates who
disfranchise one class of citizens soon turn upon each other;
the strong argument of general right is destroyed by their
united action, and the proscriptionist of yesterday is the pro
scribed of to-morrow. Human judgment has recognized the in
exorable justice of the sentence which consigned Robespierre and
his accomplices to the same guillotine to which they had con
demned so many thousand better men.
If the Catholic be untrustworthy as a citizen and the public
liberty is unsafe in his keeping, it is but a natural, logical con
sequence that he shall not be permitted to disseminate a faith
which is adjudged hostile to national independence; that he
shall not be allowed to set the evil example of the practice of
his religion before the public, that it shall not be preached from
the pulpit, that it shall not be taught in the schools, and that,
by all the energy of the law, it shall be utterly exterminated.
This was the course which England pursued when she en
tertained the same fears of the Catholics three hundred years
ago, and which she has lived to see the absurdity of, and has
removed almost, if not quite, every disability imposed. Per
haps, however, this new sect will not startle the public mind
by proposing too much at once, and holds that it will be time
enough to propose further and more minute persecution when
the national sentiment is debauched enough to entertain favor
ably this first great departure from the unbounded toleration of
our fathers,
THE KNOW-NOTHING MOVEMENT 155
It is the experience of this country that persecution strength
ens a new creed. The manhood of our nature, of all true, genu
ine men, clings more ardently to a faith which brings peril
to the believer. With the history of Protestantism in our minds,
and remembering how every effort to destroy it only planted it
deeper in the hearts of the faithful, it is natural to believe that
persecution will invigorate other creeds and sects. In my judg
ment, this attempt at proscription will do more to spread Ca
tholicism here than all the treasures of Rome or all the Jesuitism
of the cardinals.
Now, sir, what is this movement at the North, and who are
engaged in it? It is a combination of all the "isms" of that
section. Abolitionism, Free Soilism, Whigism, Woman Right-
ism, Socialism, Anti-Rentism, gathered together from a thousand
fretful rills and mingling their currents in one common chan
nel. Abolitionism and Know Nothingism are akin; the first is
a denial of the rights of a section of the Union and an attempt
to destroy them because, in its wisdom, it has determined that
those rights have not the proper moral sanction ; the other is a
denial of the rights of a class of citizens, regardless of section.
One is a crusade against the rights of States ; the other against
the rights of individuals. The one openly spurns the Constitu
tion; the other attempts a flimsy evasion of it. This daringly
attempts a breach and an assault; that more cunningly adopts
and prepares a surprise. The one almost commands respect for
nefarious schemes by boldness and courage ; the other would
bring discredit on the best of causes by evasion, circuity, and
irresponsible assaults. In Massachusetts, where the sect made
their own nominations, so far as I can learn the politics of those
elected to Congress, all are ultra anti-slavery men.1
Those whom the order voted for elsewhere in the North
are of the ultra stamp almost without exception. To secure the
vote of the Free Soilers and Abolitionists of both the old parties
it was indispensable to have a candidate tinctured strongly with
those heresies, and a flavor of Know Nothingism was added to
secure the cooperation of certain Democrats whom unadulterated
Whiggery and Abolitionism might have disgusted. It was a
combination and a triumph of all that was ultra, and factious,
and discontented, over all that was moderate, and judicious,
and studious of the public peace.
Now that most of the elections at the North are over, a la
borious attempt is made to persuade the South that the order
is free of those Abolition tendencies which secured its triumph.
^'Know-Nothings" from this State, such as Nathaniel P. Banks,
shortly became radical Republicans.
156 GREAT AMERICAN DEBATES
The one great fact relied on is that the order in New York is
opposed to Seward.
Mr. Seward 's reason for refusing to join the order, I doubt
not, was that, with his sagacity, looking to ultimate success, he
could not fail to see that the whole movement would be short
lived, and that, when it ended, no political act, not even mem
bership of the Hartford convention, with its secret proceedings,
could be more destructive to the prospects of a public man than
to have avowed the principles of the order. You, sir, and I, we
all know that it is the almost universal opinion in political circles
here that this thing will have a brief day. The most anxious
wet-nurses of the bantling hardly expect it to live through the
presidential canvass of 1856. There is everywhere the most
feverish anxiety among the faithful to secure some little official
crumb of comfort before it is forever too late. Each longs to
be carried into the pool while the waters are troubled, for the
time of the troubling, they know full well, will soon be past,
and then where shall they be healed ? Evidences of premature
decay are already visible. The party will vanish as suddenly
as it arose and leave scarcely a wreck behind. Its members
feel the sandy foundation slipping from beneath their feet.
They feel their sentence is pronounced each time they hear
repeated the wise and tolerant doctrines of our political re
ligion, which are grafted upon our Constitution. Blank an
nihilation stares them in the face. They see indignation and
distrust without, discord and rebellion within. Their secrecy
is betrayed and mocked, their intolerance is despised, and their
prestige is broken.
Were there no cause for the dissolution of the order in its
principles, the discordant materials which compose it would
soon precipitate its destruction. The ultra men already elected,
agreeing in nothing but hostility to the South, to aliens, and to
Catholics, can harmonize in no course of action, foreign or do
mestic, unless, by the happening of a Whig majority in Con
gress, the tariff should be altered to suit the protectionist theory,
or some other doctrine of that party be embodied in a law. If
this order takes hold in the South, it will surprise both friends
and opponents. It will be a matter of wonder why that section,
suffering none of the hardships which are pleaded as an excuse
for the order in the North, and from her institutions peculiarly
averse to secret and irresponsible associations, should discard a
long history of generous toleration to adopt the creed of pro
scription, and wear the name of an order which, in the Northern
States, has beaten down the defenders of the Constitution and
THE KNOW-NOTHING MOVEMENT 157
State rights, and inaugurated more fully than ever before the
era of consolidation and fanaticism.
In a crisis like the present it becomes the Democratic party
to remain steadfast to its old principles. In the "act for estab
lishing religious freedom," adopted in Virginia in 1786 and
originating in the benevolent mind of Mr. Jefferson, it was en
acted that,
"No man shall be enforced, restrained, molested, or burdened in his
body or goods, nor shall he otherwise suffer on account of his religious
opinions or belief, but that all men shall be free to profess, and by argu
ment, to maintain, their opinions in matters of religion, and that the same
SHALL IN NOWISE DIMINISH, ENLARGE, OE AFFECT THEIR, CIVIL CAPACITIES."
On this tolerant principle the Democratic party, through all
the variety of disaster and success, has stood from that day to
this. It has been the guardian of every civil and political right,
of every individual, and of every section. No error has been
too gigantic for its assault, no right too insignificant for its
protection. When the rights of the States were in peril during
the Federal Administration of the elder Adams, it was the
champion of our faith, Mr. Jefferson, who was foremost in their
defence, resting their security upon principles as wise and ven
erable as the Constitution itself, and triumphantly sustained by
the Democratic party. It was during his Administration that
the "Alien and Sedition Laws," so violative of personal right,
were effaced from the statute book by the votes of the same
Democratic party which it is now attempted to seduce into
heresies more abominable than those which it then abolished.
This new ism is the old "alien law," under a thin disguise;
and these two, with "Native Americanism," are bodies into
which the old unlaid spirit of Federalism has insinuated itself,
hoping, under these forms, to obtain a favor which was always
denied it when recognized. It is like Petruchio's nether wed
ding garment, "a thrice-turned pair of old breeches," betray
ing the nakedness it was intended to conceal.
MR. BANKS. — It is but a few years since we asked for a
secret or independent ballot, in virtue of the right of every
man to give a vote, not only uncontrolled by, but unknown to,
other men. It only perfected the right of citizens to vote by
ballot, for the ballot itself is a secret institution ; but no propo
sition could have excited greater commotion than this.
Other difficulties were not of rare occurrence; that element
of power which is now exciting such attention throughout the
country, which seems to have hitherto held a balance of power
158 GREAT AMERICAN DEBATES
in nearly all communities, and to have decided nearly every
contested election, upon a policy dictated by its leaders, was not
without its power among us; and a recent and most important
contest, so decided, has impressed a seated grief upon many
thousand hearts. I mean the influence of foreign votes.
All these causes, some operating on one mind and some upon
another, have produced discontent among men of all parties.
It was not to be expected that ordinary men could rise superior
or be wholly indifferent to them. Nor is it a recent nor sudden
ebullition of feeling. For many years indications of revolt have
been noted. New combinations have appeared and disappeared.
One by one, men have abandoned their former organizations,
with more or less success, but not in such strength as to give
courage to the timid or security to the weak ; and the masses of
men remained in camp, waiting only a fitting opportunity to
escape party drill. At length it came. In that mysterious
manner so aptly described by the eloquent gentleman from Mis
sissippi, somebody constructed a sort of subterranean passage
by which men could pass from one camp to another, seeing
nobody, knowing nobody, and saying nothing to anybody. Sir,
you should have seen them go. Eighty thousand men, of every
pursuit and opinion, in the brief space of three months, at
tested their belief in its efficiency and necessity. And was it not
their right ? Who will say that the people — the sole depositories
of political power — discontented with existing parties, may not,
even in this mysterious manner, make new combinations for the
transaction of their own affairs, and erect new standards of
policy for themselves? Is it not their right? Who says no?
Their justification stands not so much upon their necessities as
their convenience; and who can point out a more effectual or
natural method of doing what they have done — the transposition
of the rank and file of all parties into a new organization, ex
cluding nobody but the leaders, taking everybody inside that
desires to come, and leaving nobody outside but the driver?
Who will say it is not the right of the people? Does the gen
tleman from Mississippi complain of their secrecy? Is it se
crecy that makes the wrong? Sir, secrecy is their right. It
belongs to them. No man and no power can justly take it
from them. What have they done? As yet they have done
nothing. You cannot punish men for that. Well, sir, these
men have done nothing yet, except to carry an election here
and there, and that is not treason, even though a Pennsylvania
judge did charge a jury that certain things could not be done,
or ought not to be done, or were criminal in point of law. Sir,
THE KNOW-NOTHING MOVEMENT 159
it is the people who are passing through these avenues, those
who make judges and district attorneys, and they will take care
of them all. They will take care of the juries and sheriffs as
well as judges.
MICHAEL WALSH [N. Y.]. — Has this avenue you have been
speaking of any connection with the ' ' underground railroad " ? 1
[Laughter.]
MR. BANKS. — It has not. It is altogether another line of
business. I own no stock in that corporation. [Renewed laugh-
tor.]
Now, a word upon secrecy in politics! Who made the
President of the United States? The people, you will say, have
elected him to the office. But who laid the train to which the
people set fire? Sir, there never has been a presidential elec
tion in this country which has not been controlled by secret
associations and combinations; and, let me say, too, by a com
bination which has no popular elements; which has no popu
larity in its constitution; which operates through a few privi
leged members; and it is, in fact, such combinations that con
trol the government of the country. Who can undertake to
say that the next presidential conventions will not be controlled
by coteries of men whose only power is the secrecy with which
their plans and purposes are held? Who will deny that it has
been ever thus, or that it will be ever thus? Why is that
criminal in the people which has been the constant practice of
politicians ?
But I am for publicity as well as secrecy. I go beyond the
gentleman from Mississippi in that respect. I am for publicity
when a man assumes to act for other men; but when he acts
for himself I say that no man has a right to require him to
divulge his purposes or views. If he choose to wear them on
his sleeve, it is his right to do so; and, if he choose to keep
them in his own breast, and to say nothing, and to know
nothing [laughter], it is equally his right. But when a man
assumes to act for others, then, sir, he has not the right, as
a representative party, to secrecy; and, if the original power
call upon him for a development of his policy, he cannot with
hold it.
I may say here, in passing, that the secrecy which this coun
try has, in some degree, contributed to fasten on the diplomacy
of the world is an element of power which is doing more to
crush the nations of the earth than any other element of op-
*A system of conveying fugitive slaves to Canada, conducted by Aboli
tionists.
160 GREAT AMERICAN DEBATES
pression. The five millions of men who are this hour in arms,
under whose heavy tread the earth shakes, are not doing one-
tenth part of the wrong to the generations now existing and yet
unborn which the secret and false diplomacy of the world is
producing in its effects upon them ; and, so far as this country
contributes, in any degree, to sustain the secrecy of diplomacy,
so far, I say, its policy should be changed ; and therefore I voted
— as I think my friend from Mississippi did not vote — for an
exposition of what our friends and diplomatic agents were doing
in the congress of Ostend.
MB. BAYLY, of Virginia. — Oh, let that alone.
MR. BANKS. — Yes, if the committee will report soon. [Laugh
ter.]
Then I ask the attention of the committee for a moment to
the program which the gentleman from Mississippi exhibited
as the proposed operations of what he calls the Know Nothings.
I do not know whether he is right or wrong ; but in a paper pub
lished in Pennsylvania I read some months since an expose of
what the purposes of that organization are, and of the means
through which they intend to operate. In the first place, I did
not see anything there about the naturalization laws ; nothing of
their repeal nor the limitation of the term; nor any other mat
ter or topic referring to that subject. The Pennsylvanian pub
lished the document, and it was copied in our section of the
country as a full, entire, and perfect expose of the purposes of
the secret association existing in Pennsylvania and having its
ramifications throughout the country. Therefore, it does not
appear that interference with the naturalization laws is one
of these purposes. I looked carefully to that point, but I saw
nothing referring to that, nor to the Catholic Church or Catho
lic religion.
MR. BARRY. — Will the gentleman allow me to correct him. I
read here from the same paper, The Pennsylvanian, and if the
gentleman admits this to be an authentic copy of the rules of
the body
MR. BANKS. — Sir, I admit nothing. I know nothing. [Laugh
ter.]
MR. BARRY. — I hold in my hand the paper to which the gen
tleman from Massachusetts refers — The Pennsylvanian — and I
find in the oath which the member is required to take the fol
lowing sentence:
"That you will support, in all political matters, for all political offices,
second degree members of this order, providing it be necessary for the
American interest; that, if it may be done legally, you will, when elected
THE KNOW-NOTHING MOVEMENT 161
to any office, remove all foreigners, aliens, or Roman Catholics from office,
and that you will, in no case, appoint such to office. ' '
MR. BANKS. — I call the attention of my friend to the fact
that in his speech he used the term "Catholics"; he now reads
it "Roman Catholics."
MR. BARRY. — Well, in our section of the country Catholics
are understood as Roman Catholics.
MR. BANKS. — I beg the gentleman's pardon if I say that
there may be a distinction in the terms.
MR. BARRY. — I venture to say that no other gentleman in
the House misunderstood me, in speaking of Catholics, except
the gentleman from Massachusetts, who might do so on Know
Nothing principles. [Laughter.]
MR. BANKS. — I noticed the distinction, and I purpose to
speak of it. I have no objection to any man of the Catholic
Church or faith. Here is our friend from Pennsylvania [Mr.
Chandler], an amiable, learned, and eloquent man; I might
be willing to vote for him, Catholic as he is, in preference, per
haps, to others nearer my political faith than he is. It cannot
concern me, and it can concern no man, that, as a matter of
faith, any person cherishes the doctrine of transubstantiation,
accords the full measure of Catholic veneration to sacred relics
or images, and accepts every article of the Nicene creed. Each
man is accountable for his own faith, as I for mine. And, even
though my name were appended to the declaration read to us
by the gentleman from Mississippi from The Pennsylvania^, I
might still vote for such a man if otherwise it lay in my way
to do so.
But there is another branch of this subject. It is a current
belief that the Pope, the head of the Roman Church, who stands
as the Vicar of God, and is invested with his attributes of in
fallibility, is not only supreme in matters of faith, but has also
a temporal power that can not only control governments, but, in
fitting exigencies, may absolve his disciples from their allegiance.
The power was asserted in England under Henry VIII and
Elizabeth, and it has never been disavowed there, nor in Spain,
nor in any other land, Catholic or Protestant, by the authority
of the Roman Church. My name is not appended to the expose
read to us here, nor do I know much about it; but I will say
that, if it be true that the Pope is held to be supreme in secular
as in sacred aiTairs, that he can absolve men from their rela
tions with others not of the true faith, it is not strange that
men should hesitate in support of his followers. I would not
VII— 11
162
GREAT AMERICAN DEBATES
vote for any man holding to that doctrine, and, I doubt not,
other gentlemen here would concur with me in that feeling.
And then, again, as to our foreign population. I bear no
enmity toward foreigners. I have stood by the adopted citi
zens of my own State, without any distinction of person what
ever, whether they were high or low, rich or poor. But if
THE UNSEEN SIGNAL OF THE JESUITS
From the collection of the New York Public Library
they hold as the supreme head of secular power the Pontiff of
Rome, and consider that he can in any case absolve them from
their allegiance to the commonwealth of Massachusetts or to the
United States, why they have no claim whatever upon any man
for support. If they understand that their interests are sepa
rate from those of American citizens, if they take direction
from their spiritual guides in political matters, and, by precon
certed and private arrangements, form associations and make
parties of their own, seeking to obtain and hold the balance of
power, throwing their weight first into one scale and then into
the other, as they may understand their own interest to dic
tate, they will force upon American citizens the alternative either
to make similar combinations against them, by refusing to di
vide upon the ordinary maxims of party policy, or to abdicate
THE KNOW-NOTHING MOVEMENT 163
the seats of political power. A balance of power, under such
circumstances, is absolute power, and the direction of public
affairs is in the hands of those who wield it.
Now, I understand the breaking up of preexisting organiza
tions that were based upon the minute differences of opinion
upon past questions, thus throwing an unfailing balance of
power into the hands of a small minority of citizens, not of
national origin, and possibly of only quasi-national interests,
to be the purpose and object of the American organizations that
have been so vigorously denounced. Of course I must admit
that the necessity of such combinations to guard against the
public dangers arising from causes I have stated — obedience to
ecclesiastical direction in political affairs and the silent assump
tion of that position which gives to a small number of men
a despotic balance of power — is denied. But I hesitate not to
say that, in my own State, many thousand people entertain the
belief that there is cause of fear, and my experience in its recent
political history forces upon me a participation in that con
viction.
I desire to call the attention of the committee to the present
condition of the country as it regards emigration, and to con
trast its results with that period when the Constitution and
the early statutes of naturalization were adopted. Then the
emigration from abroad, according to the estimate of Professor
Tucker, was at the rate of five thousand per annum.
Look, now, at the returns made to us of European emigra
tion. Within the present year, the last quarter of which has
not yet expired, the foreign emigration will amount to very
nearly four hundred thousand persons. And has this emigra
tion reached its head? Who can say that? Look at the con
dition of Eastern and Western Europe, of Asia, of China?
The earth shakes under the heavy tread of more than five mil
lion armed men, and every state is subjected to the general
scourge of actual or impending war.
But emigration presents an avenue of escape from the evils
of actual or impending war. Where shall they go? To Can
ada? To unstable Mexico? To South America? They will
come to the United States. The three and a quarter millions of
foreign-born people, and their descendants here, have so many
heart strings out to draw their kith and kin to the New World.
Our country begins to be known abroad. The most favorable
account of this country, lately published, was written by a gen
tleman1 who ten years since asked an American how it was
1 Alexis De Tocqueville, author of "Democracy in America."
164 GREAT AMERICAN DEBATES
possible he, who had seen Europe, could live in America? They
begin to feel that America is the only land where men can
reach their true standard of greatness. Our institutions are de
bated by the light of every camp-fire and hearthstone on the
face of the earth. The excited imaginations of distressed and
heartbroken men invest that liberty we actually enjoy with the
attributes of an almost fabulous and impossible prosperity and
freedom. When one State is exhausted another is opened. How
is it possible that emigration can have reached its head? Who
can doubt its increase; or that it may, even in our time, be
doubled ?
Look to the East, to China, India, Japan, with their six
hundred millions of people, often without employment or sub
sistence. They have already an idea of the institutions and
capacity of the American continent. The Chinese, whose emi
gration has been limited to Japan, now seek the United States
and the islands of our southern seas. They are already upon
the Pacific Coast. Thirty or forty thousand are in California;
and when we are, by steamships, within ten or twelve days' sail
of their crowded empires, who can prophecy the extent of this
new and unanticipated emigration? Who can check its en
croachments? Not the State; that has been decided by the
supreme judicial tribunal. What power is equal to that duty?
Shall we fend off with the bayonet? No, sir, if they come
we shall admit them. There may be legitimate uses for them
in the economy of God 's providence. But have they a Christian
character adapted to the institutions of this country? I ask
the gentleman from Mississippi whether we shall give to them
the rights of citizenship at the close of their first five years'
residence? Or are we to have another extension of judicial
decrees, another code of judicial fictions, that, in the absence of
any legislation, shall determine what affinities of race, and color,
and blood make it impossible for men ever to participate in
the powers of government ?
Did the framers of the Constitution declare that foreigners
had a right to participate in the affairs of government? Not
at all! They made the Constitution prescriptive. They de
clared by a unanimous vote of the convention that, after a brief
period, no man but a native-born citizen should be eligible to
the office of President. They declared that nine years' citizen
ship should be required to make a man eligible to the Senate,
and seven years to the House of Representatives. They took
from the States the power to confer citizenship which the States
then exercised. There is nothing to show that they entertained
THE KNOW-NOTHING MOVEMENT 165
the idea advanced here that foreigners had a right to partici
pate in the highest prerogatives of government. It was made a
question of expediency. It was a privilege conferred.
Mr. Gerry, of Massachusetts — afterward Vice-President dur
ing the administration of Mr. Madison — said that he wished * ' in
future eligibility might be confined to NATIVES. He was not
singular," he said, "in his views. A great many of the most
influential men in Massachusetts reasoned in like manner. ' ' Simi
lar views were expressed by leading men of the Federal and
Republican parties.
How is it with the foreign population of our day? The
gentleman from Mississippi alluded to the flattery of foreign
voters by General Scott in the campaign of 1852. But how
was it with the Democratic party in that canvass? Where were
the different parties of all the States? And how will it be with
all the parties in the contest of 1856? May not they, too, go
down on their knees to those who may hold the balance of power
in that contest?
How is it that so many gentlemen of foreign birth hold
diplomatic stations at foreign courts? Is it because General
Pierce is President? Would not General Scott have pursued
the same policy? May not the next man who occupies the
presidential chair do the same thing? I do not censure one
party and excuse another because the necessities of action are
equally imperative on all.
There is no remedy for this state of affairs but that UNION
which has been described to us, and that, I understand, to be
a chief object of the party whose members are called Know
Nothings. While it denies no rights to a minority, it demands
the rights of a majority. While it denies to foreigners nothing
that belongs to them, it claims and assumes the prerogative
of government which is here the unquestioned right of Ameri
cans. Denying to no person the rights of conscience, or the
freedom of religious opinion, it establishes and perpetuates
both of these in placing the Government upon the basis which
was contemplated by the Constitution and by the Fathers of
this Republic.
In 1848 I supported the Democratic candidate for the presi
dency. I was intimate with one who likewise advocated the
claims of General Cass, but who always said he would be
defeated. It was a tight battle, as everyone knows; and none
but very wise men knew its result until after the election. Some
months after my friend mentioned to me his prediction. "How
was it," said I, "that, while you labored for Cass, you were
166 GREAT AMERICAN DEBATES
certain of his defeat ? ' ' Said he, "I am a Jesuit ; and our in
structions were to shout for Cass but to vote for Taylor."
Now, sir, I know that a change of the statutes of naturaliza
tion will not remedy any possible evil of this character. But
the revision of these statutes may be pressed upon our attention
by the increased number of convicts and paupers of other gov
ernments that are sent here ; by the hitherto unanticipated emi
gration from the Chinese Empire; by what we know of the
past and fear of the future. These things do not, in my judg
ment, demand a repeal of the statutes of naturalization, but
they will justify an extension of the term of residence now re
quired and a more stringent execution of the laws existing than
has been usual hitherto.
The gentleman from Mississippi suggested that this was a
land of toleration — of religious toleration. Sir, I go far beyond
that. I do not agree merely to the toleration of Catholics or
Protestants here. They have an absolute right. Every person
is entitled to religious freedom. The Catholic and the Protestant
have their right under our institutions. No one will be more
reluctant than myself to disturb or curtail the right. I am for
extending it to the professors of every faith in the largest
possible degree. But the concessions of the Constitution and
laws end there. In matters of politics we extend to citizens from
other lands the right of participation, not the right of control.
In establishing the charter of religious freedom we neither
avoid the responsibilities nor abdicate the duties of government.
CHAPTER VH
AID TO FKEEDMEN
[THE FREEDME&'S BUREAU]
The Government's Care for Freedmen in the Civil War — Establishment of
the Freedmen 's Bureau — Debate on the Bill in the House: in Favor,
Thomas D. Eliot [Mass.], Gen. Robert C. Schenck [O.], William D.
Kelley [Pa.]; Opposed, Francis D. Kernan [N. Y.] — Debate in the
Senate : in Favor, Charles Sumner [Mass.] ; Opposed, Garrett Davis
[Ky.]; Opposed to Certain Features, Thomas A. Hendricks [Ind.],
James W. Grimes [la.], Samuel C. Pomeroy [Kan.], William Sprague
[B. I.], John B. Henderson [Mo.], Henry S. Lane [Ind.], John P. Hale
[N. H.] — Gen. Oliver O. Howard Is Made Commissioner of the Bureau;
His Administration — Lyman Trumbull [111.] Introduces in the Senate
Bill to Enlarge Powers of the Bureau; It Is Extensively Debated,
Passed by Congress, and Vetoed by President Johnson — The President's
Speech Defying Congress — Speech of Representative Ignatius Donnelly
[Minn.] on "Education and Citizenship" — Thomas D. Eliot [Mass.]
Introduces in the House Another Bill Framed to Avoid Constitutional
Objections; It Is Passed by Congress; Vetoed by the President;
Passed by Congress over the Veto.
IN the case of the negro the National Government
permitted the exercise of civil duties before it con
ferred upon him civil rights. Thus from the be
ginning of the nation he was allowed to serve as a
soldier [see Vol. VI, chapter ix.]
During the Civil War and for some time thereafter
the negro was treated by the Government as a ward,
somewhat in the manner in which it has always treated
the Indian.
Before the end of 1864, says Alexander Johnston in
his "American Political History," the advance of the
Union armies had freed three million persons, of whom at
least a million threw themselves helplessly upon the
Federal Government for support. Attempts to em-
167
168 GREAT AMERICAN DEBATES
ploy some of them upon confiscated or abandoned plan
tations failed through the rapacity and inhumanity of
the agents employed ; and in 1863 great camps of f reed-
men were formed at different points, where the negroes
were supplied with rations, compelled to work, and kept
under some degree of oversight. The next year, 1864,
this great responsibility was transferred from the War
to the Treasury Department, but was still a mere inci
dent of the military or war power of the President, as
commander-in-chief, and was without any regulation of
law.
A bill to establish a Bureau of Emancipation had
been introduced in the House on January 12, 1863, but
it failed to pass. Another bill passed the House on
March 1, 1864, but failed in the Senate.
THE FREEDMEN 's BUREAU
One of the last acts approved by President Lincoln
(on March 3, 1865) established in the War Department
a Bureau for the Belief of Freedmen and Refugees.
By this act the President, with the concurrence of
the Senate, was authorized to appoint a Commissioner
of the Bureau and one assistant commissioner for each
seceded State, or military officer detailed for the duty,
the function of whom was to superintend the disposition
of provisions, clothing, etc., issued by the War Depart
ment, to supply the immediate needs of the beneficiaries,
and to set apart in seceded territory tracts of land which
had been either abandoned by the former owners or con
fiscated or purchased by the Government, said tracts
being divided into forty-acre lots for the freedmen, who
were to hold them for three years at an annual rental
of not more than 6 per cent, of the appraised value of
such lots in 1860, and who, during this term or at its
expiration, were to be allowed to purchase them at the
said valuation.
In order to aid the freedmen to take advantage of
this opportunity to purchase land a number of phil
anthropic citizens throughout the North, headed by
THE FREEDMEN'S BUREAU 169
Peter Cooper of New York City, organized a Freed
men 's Savings and Trust Company, which was incorpo
rated by Act of Congress, approved on March 3.
On the same day the President approved an act
of Congress removing all disqualification of color in car
rying the mails.
FREED MEN'S AID BILL
CONGRESS, DECEMBER 20, 1864-MARCH 3, 1865
The House bill, postponed from the previous session,
came before both Houses on December 20, 1864, and a
joint conference committee was appointed, consisting of
Senators Charles Sumner [Mass.], Jacob M. Howard
[Mich.], and Charles R. Buckalew [Pa.], and Repre
sentatives Thomas D. Eliot [Mass.], William D. Kelley
[Pa.], and Warren P. Noble [0.].
On February 2, 1865, Mr. Eliot reported to the House
of Representatives the bill drafted by the majority of
the committee, which was to create an independent bu
reau of the Government for the administration of the
affairs of the freedmen, with powers substantially those
which were afterward granted.
Francis Kernan [N. Y.] opposed the bill, chiefly be
cause of the military character of the commissioners,
who were to exercise authority in certain instances over
white persons.
Sir, I submit that the experience of the last few years must
have made it apparent to every gentleman here that these mili
tary commissions are characterized by a want of certainty as
to the conviction of the guilty and the certainty of frequently
convicting the innocent.
On February 9 the President laid before the House
a memorial which he had received from officers of the
private freedmen 's aid societies of the country, and
which asked that the Government establish the proposed
bureau.
The work was too great for private charity, said
the petitioners, besides, it was the Government's duty
to undertake it.
170 GREAT AMERICAN DEBATES
It is the magnitude, not the nature, of the work that ap
palls us, and drives us to the Government for aid and support.
We have found the freedman easy to manage beyond even our
best hopes; willing and able to fight as a soldier; willing and
able to work as a laborer ; willing and able to learn as a pupil ;
docile, patient, affectionate, grateful, and although with a great
tribal range of intellect from nearly infantile to nearly or
quite the best white intelligence, yet with an average mental
capacity above the ordinary estimates of it.
[We have no doubts of the aptitude of the slave for freedom
under any fair circumstances. But we see that his circum
stances must inevitably be unfair under the best arrangements
the Government can make, and that, independently of a great
paternal care on the part of the Government, they will be so
bad as to wring cries of shame and indignation from the civil
ized world, dishearten the friends and advocates of emancipation
at home, and give new vitality to the disloyal suggestions of the
slaveholders' allies in the North and West.
Has the Government any moral right to free the slave with
out seeing to it that, with every chain it breaks, the best within
its power is done to keep the freedman from hankering after
his master and his bondage, from feeling that his liberty is a
burden, his life a curse, and his domestic affections even more
fatal to his peace under our flag than beneath the plantation
whip? Shall he hunger and thirst, shall he go naked and
cold, shall he wander houseless and die unburied, shall his aged
parents and young children be scattered where he cannot find
them, and in unspeakable misery lay their bones together, too
old and too young to contend with their fate upon the strange
and distant soil to which fear and want have driven them?
While anything remains undone within the power of the nation
or the Government to do to alleviate or diminish this misery,
the Christian principle and pity of our people will allow none
who are responsible for it to rest in peace.
Let not this anxiety for a bureau of emancipation, as an
expression and organ of government solicitude and care, be
confounded with a disposition to overdo the care of the freed-
men; to come between them and the natural laws of political
economy; to substitute supervision and direction for their own
latent energies and self-helpfulness. The utmost extent to
which the ordinary principles of free light and labor can be
applied to the blacks should be insisted on; the least possible
done for them, the most possible expected of them ; as little dif
ference made as can be between them and other laborers, their
THE FREEDMEN'S BUREAU 171
treatment always leaning rather to too little than too much aid
and direction.
Gen. Robert C. Schenck [0.] argued for placing the
bureau under an existing department, preferably the
War Department, since its activities, which he consid
ered to be chiefly directed to the present relief of the
f reedmen, would end with the war. He wished to add to
the bill the features of a bill already before the House
(submitted by the Committee on Military Affairs),
which provided for the relief of destitute whites in the
South as well as blacks.
William D. Kelley replied to General Schenck:
The view taken by the gentleman from Ohio is a very narrow
one. It does not comprehend the scope of this bill or of the
want for which it proposes to provide. He seems to desire to en
large its purposes by embracing a class of people not contem
plated by the bill, but proposes really to narrow them by re
ducing the functions simply to those of feeding exiled people or
hungry refugees. The bill contemplates a temporary organiza
tion for systematizing the labor of the four million people who
hold no other relation than life and nativity to our country
or its institutions. They have no experience of life beyond the
plantation, or, if they have, they have derived it as they have
gone in gangs from one slave market to another, or from the
market to the field of labor. They have not been permitted to
know the cares and responsibilities of life.
We provide by national law for the care of the newly arrived
immigrants, and why? Because many of them come to us in
ignorance, and most of them without knowledge of our country,
its laws, its habits. We protect them against the vices of our
own people. We induct them, as it were, into the great temple
of American civilization.
The system, or rather want of system, proposed by the gen
tleman from Ohio would, in my judgment, create and foster an
immense body of paupers, while the aim of every provision in
the bill of the committee of conference is to elevate into inde
pendent, self-sustaining, self-governing men and women the
freedmen of the country. They hold no relation, I say, to our
laws. They are not witnesses under the laws of the States in
rebellion ; they may not sue ; they may be robbed of their earn
ings, and there is no court before which they can successfully
172 GREAT AMERICAN DEBATES
present or press their claims. They are, thanks to the infernal
system of laws under which they have been reared, unable to
read or write.
This bill would throw around them for a brief time the care
of the Government, and see that contracts are fairly made with
them and fairly enforced. It involves no large amount of pat
ronage. It involves no cost. It proposes to add immensely to
the revenue of the country by making lands that otherwise
would lie waste bloom and bear, and to quicken the industry
by giving the stimulant of a just reward to those who, without
such care, would wander in vagrancy and pauperism, under the
general provisions of the bill which the gentleman from Ohio
would substitute.
Mr. Speaker, it is not often given to a legislature to per
form an act such as we are now to pass upon. We have four
million people in poverty because our laws have denied them
the right to acquire property; in ignorance because our laws
have made it a felony to instruct them; without organized hab
its because war has broken the shackles which bound them; and
has released them from the plantations which were destined
to be their world.
We are to organize them into society ; we are to guide them,
as the guardian guides his ward, for a brief period, until they
can acquire habits and become confident and capable of self-
control ; we are to watch over them, and, if we do, we have, from
their conduct in the field and in the school, evidence that they
will more than repay our labor. If we do not, we will doom
them to vagrancy and pauperism, and throw upon another Con
gress, and perhaps upon another generation, the duty or the
effort to reclaim those whose hopes we will have blasted, whose
usefulness we will have destroyed.
Mr. Eliot asked General Schenck to support the bill
now and later offer one for the aid of the destitute
whites, which bill, he promised, he would heartily sup
port. He objected to placing the Freedmen's Bureau
under the War Department because of the conflict which
would ensue with the Treasury Department, which had
authority over the abandoned lands. This authority
would shortly pass to the War Department, and then
the Bureau could be put under the control of the De
partment. There was urgent need, he said, to pass the
bill at once.
THE FREEDMEN'S BUREAU 173
The House agreed to the report by 64 yeas to 62
nays.
On February 13 Senator Sumner reported the bill of
the majority of the committee to the Senate.
Garrett Davis [Ky.] objected to the military char
acter of the bill, on the ground already advanced by
Representative Kernan.
On February 21 Thomas A. Hendricks [Ind.] argued
that the Bureau should logically be under control of the
Interior Department, which had similar charge of the
lands and well-being of the Indians.
James W. Grimes [la.] objected to the bill because
it applied only to the rebel States. The 12,000 colored
refugees in the District of Columbia ought also to come
under its provisions. Furthermore, the destitute white
loyalists in the South ought to have equal treatment
with the negroes. He also feared that the unlimited
power given to the commissioners to hire out the freed-
men might some time be abused. He therefore advo
cated the bill of the Committee on Military Affairs in
the House, which contained none of these objectionable
features.
Samuel C. Pomeroy [Kan.] feared that an indepen
dent bureau might become a permanency and that the
freedmen would never be thrown on their own resources
but always be sustained by the Government. Thousands
of colored and white refugees had come into his State,
and he had observed that the former were more self-
reliant than the latter, having learned in the bitter school
of slavery readily to adapt themselves to hard condi
tions.
I am looking for a speedy return of the colored population
of this country to freedom and to taking care of themselves and
adapting themselves to that condition; and all I think the exi
gencies of the case demand is some temporary expedient for a
year or two.
William Sprague [R. L] was opposed to the measure .
if the elective franchise could be granted to the negro.
174 GREAT AMERICAN DEBATES
When a man can vote he needs no special legislation in his
behalf. The freedmen's department, as proposed by the bill
under discussion, uncoupled with the rights and privileges of
free men for the colored men, in my opinion, will illustrate
history in the style that the Indian Bureau illustrates the begin
ning and end of the Indian. Sir, I am for perpetuating all
races of men. I do not believe that it is necessary to secure
the prosperity of one race that another should be destroyed.
I fear that the bill under discussion will destroy the negro race
in this country. I desire that those who advocate this bill will
stop here and spend their time and talent in demanding for
the negro race all the rights and privileges of freedom. Do
this, and no f reedmen 's bureau is at all necessary.
Senator Sumner resisted postponement, as he feared
that this meant killing the bill.
I am pained by this opposition. It is out of season. Sir,
I am* in earnest. Seriously, religiously, I accept emancipation
as proclaimed by the President, and now, by the votes of both
Houses of Congress, placed under the sanctions of constitutional
law. But even emancipation is not enough. You must see to
it that it is not evaded or nullified, and you must see to it espe
cially that the new-made freedmen are protected in those rights
which are now assured to them, and that they are saved from
the prevailing caste which menaces slavery under some new
alias; and this is the object of the present measure.
The Senator from Iowa renews now the objections which he
made at an earlier stage of this legislation. So far as I under
stand his objection then and now, it is twofold : first, that the
freedman is placed under constraint, and that he is not a free
man; and, secondly, that he is treated too much as an infant
or a pupil. Now, I undertake to say that the objection in both
these forms is absolutely inapplicable.
The freedman is treated in every respect as a freeman.
Again and again in the bill his rights are secured to him. Thus,
for instance, in the fourth section it is expressly provided that
" every such freedman shall be treated in all respects as a free
man, with all proper remedies in courts of justice, and no
power or control shall be exercised with regard to him except
in conformity with law/' In face of these positive words, so
completely in harmony with the whole bill, it is vain to say
that the freedman is not a freeman. Sir, he is a freeman just
as much as the Senator himself, with a title derived from the
THE FREEDMEN'S BUREAU 175
Almighty which no person can assail. When the Senator finds
danger to the freedmen in this measure he consults his imagina
tion, inflamed by these hostile sentiments which he has allowed
himself to nurse.
But the Senator complains that the freedman is treated too
much as an infant or a pupil. Let him point out the objection
able words. The freedmen, it is admitted, are under the general
superintendence of the commissioner. But are we not all under
the general superintendence of the police, to which we may
appeal for protection in case of need? And just such protec
tion the freedmen may expect from the commissioner, according
to his power. The Senator himself is under the superintendence
of the presiding officer of the Senate, whose duty it is to see
that he is protected in his rights on this floor. But the pre
siding officer can do nothing except according to law, and the
commissioner is bound by the same inevitable limitations.
But there are regulations applicable to the contracts of the
freedman. Very well. Why not? To protect him from the
imposition and tyranny of the dominant race it is provided
that "no freedman shall be employed on any estate above men
tioned otherwise than according to voluntary contract, reduced
to writing and certified by the assistant commissioner or local
superintendent." Mark the language, "voluntary contract. "
What more can be desired? But this is to be reduced to writ
ing. Certainly, as a safeguard to the freedman and for his
benefit. Then, again, the commissioners are to act as "advising
guardians," in which capacity they are to "aid the freedmen
in the adjustment of their wages." But do not forget that the
freedman is a freeman, and if he does not need such aid or
advice he may reject it — just as much as the Senator himself.
Look at other clauses, and they will all be found equally in
nocent.
But there is the section originally introduced on the motion
of the Senator from West Virginia [Waitman T. Willey],
providing that ' ' whenever the commissioner cannot otherwise em
ploy any freedmen who may come under his care he shall, so
far as practicable, make provision for them with humane and
suitable persons at a just compensation for their service." Here
again are tyranny and outrage carried to the highest point. But
how ? The commissioner is to act as an intelligence office. That
is all ; and everything that he does is to be " in conformity with
law." This clause, even if it were in any respect ambiguous,
must be ruled by those earlier words which declare that ' ' every
such freedman shall be treated in all respects as a freeman."
176 GREAT AMERICAN DEBATES
What more can be desired ? With this rule as a touchstone, no
freedman can suffer in his rights.
But the strange complaint is made that this measure is too
favorable to the freedman, and, indeed, we have been told that
something is needed for the whites. Very well; let it be done.
I trust that an enlightened government will not fail to recog
nize its duties to all alike. Meanwhile, it is proposed that aban
doned lands shall be leased to freedmen, and, if they are not
able and disposed to take the lands for a twelvemonth, then
they are to be leased to other persons. And why not? The
freedmen for weary generations have fertilized these lands with
their sweat. The time has come when they should enjoy the
results of their labor at least for a few months. This war has
grown out of injustice to them. Plainly to them we owe the
first fruits of justice. Besides, this provision is essential as a
safeguard against white speculators from a distance who will
seek to monopolize these lands, with little or no regard to the
freedmen. Ay, sir, it is too evident that it is essential as a
safeguard against grasping neighbors who still pant and throb
with all the bad passions of slavery.
Mr. President, the objections to the measure are vain. It is
not hurtful to the freedman. It is not hostile to liberty. Its
declared object is the good of the freedman. Its inspiration is
liberty. Look at it as a whole or in detail and you will find
the same object and the same inspiration. It only remains that
the Senate should adopt it, and give a new assurance of justice
to an oppressed race. In the name of justice, I ask your votes.
The Senate refused to postpone the bill by a vote of
13 yeas to 16 nays.
John B. Henderson [Mo.] opposed the bill.
It will, if adopted, instead of benefiting the freedmen of
the South, be attended with consequences sufficient in time to
reenslave them. Does the Senator from Massachusetts take into
consideration the vast number of freedmen to be found in the
Southern States — from three to three and a half millions? It
is intended that the eighty-eight superintendents who are pro
vided for in the bill shall go on to look into the condition of
these negroes, and wherever they cannot make otherwise suitable
provisions on the lands they may seize upon in the Southern
States it will be their duty to look out homes for them, and
put them with those parties that they see fit to place them
under, for such compensation and for such a time as they may
THE FREEDMEN'S BUREAU 177
desire. What will be the result of this? Will there be enough
abandoned lands in the Southern States upon which to place the
negroes ?
Again, these commissioners and superintendents are to act
as guardians, and they are to aid the freedmen in the adjust
ment of their wages and in the application of their labor. I do
not profess to have been an anti-slavery man a great while, but
the Senator from Massachusetts is certainly too old an anti-
slavery man to have been the author of a proposition of this
character. What was the old argument in favor of the institu
tion of slavery? It was that the African race is not competent
to self-government, that the negro is not able to take care of
himself, that he needs a guardian. Though I am not a very
old anti-slavery man, I can say to Senators here that I never
believed a word of that argument. I believe to-day that if you
turn loose the negroes of the Southern States and tell them to
take care of themselves they will do it. There is no doubt about
it. They will make a better contract for themselves than any
white man who is their next friend will make for them. They
are intelligent enough to do it; and, Mr. President, I tell you
that, so far as my experience goes, they are as industrious as
the white man. They take care of their wages as well as the
white man does, and they are just as capable of making con
tracts.
SENATOR SUMNER. — Allow me to say to the Senator, then,
that this bill will have no application to such persons. No per
son need be aided in making a contract unless he stands in
need of it. Every person under the bill will be as free as the
Senator himself, just as free to make a contract to the right
or the left as the Senator from Missouri. It is only if he
stands in need of it that he may claim that aid.
SENATOR HENDERSON. — Let me call the Senator's attention
to the fact that this is made a duty. If my proposition be true
that these negroes can take care of themselves, why the neces
sity of this aid? Turn loose the negroes in this country and
let them take care of themselves. Take the letter "d" out of
that word "freedmen," leave them to be "freemen" and not
"freedmen." I am opposed to keeping up the idea that these
negroes when they have been turned free are to have guardians,
supervisors, superintendents, and commissioners to take charge
of them.
HENRY S. LANE, of Indiana. — Overseers.
SENATOR HENDERSON. — Yes, "overseers," for they are noth
ing else.
VII— 12
178 GREAT AMERICAN DEBATES
Now, let us look at another provision of this bill. It is
not made the duty of the negroes to take charge of the aban
doned farms in the South. The Senator says that if these
negroes can take care of themselves they will be just as free
as I am. The Senator is mistaken. Why does he make it the
duty of these officers to take charge of all the lands in the
Southern States? Why not let the negroes go and take charge
of them themselves? I ask the Senator now, and I ask for an
answer, is it possible for a single negro to get possession of a
home after the appointment of these superintendents unless it
be their free will to put him upon the land?
I venture to predict that, after the machinery of this de
partment is put into full operation in the Southern States, and
this vast number of clerks and superintendents shall have been
appointed, there will be a system of fraud and swindling that
will astound the Senator from Massachusetts. Let me tell the
Senator that the negro would be much better off without these
superintendents. The negro knows how to cultivate the cotton
lands of the South much better than the gentlemen who will be
sent down there as superintendents, and who never saw a cotton
plant in their lives.
But what else is there? If the lands and other property
shall not be required for the freedmen, the officers may rent or
lease them to other persons. It is also provided that all con
tracts of the freedmen are to be in writing. The Senator from
Massachusetts knows very well that when a contract is once
reduced to writing the writing itself is the evidence of the con
tract and no oral testimony can be taken against it. Does he
not know that nine-tenths of the negroes of the Southern States
cannot read and write? And if these superintendents are per
mitted to superintend every contract and to make contracts
for the negro, as they will do, does he not know that it will be
utterly impossible for the negro in any court of justice any
where to introduce testimony outside of the contract? These
contracts will be made by dishonest superintendents again and
again in order to benefit themselves and to rob the negro of
the earnings of his labor. Such will be the fact ; and the Sen
ator from Massachusetts in less than two years from to-day
will discover that what I say is true.
On February 22 John P. Hale [N. H.] spoke. He
objected to letting the negroes have the first choice of
the abandoned lands, thus leaving the destitute white
men without relief at a time when they most needed it.
THE FREEDMEN'S BUREAU 179
If at any time one of your officers under this bill may feel
inclined to make some provision for some loyal, suffering white
person, though he may have got the contract nearly consum
mated by which the outcast and the refugee is to obtain a place
of shelter for himself, his wife, and his little ones, if a colored
man comes up and says he wants it, your officer's hands are tied
and he cannot move for the benefit of the white refugee.
I confess that I do not hold to that sort of philanthropy.
I think I go as far as Christianity and humanity require me
to go when, in cases of this kind, I let the white and the black
stand together; but I am unwilling to have placed by my vote
upon the statutes of this country a provision which would actu
ally forbid our officers from extending any relief, even the
slightest, to a white refugee, provided there was a colored per
son who wanted it.
Henry S. Lane [Ind.] opposed the bill, reiterating the
arguments that had been presented by former opponents
of the measure.
I am in favor of temporary relief and temporary support to
poor colored persons and equally to the white refugees. But I
have an old-fashioned way of thinking which induces me to
believe that a white man is as good as a negro if he behaves
himself. [Laughter.] Now, sir, the report of this committee
of conference goes upon the supposition that the negro is wholly
incompetent to take care of himself. The reason assigned for
slavery by slave masters for the last fifty years has been that
these people are helpless, utterly unable to take care of them
selves; that they have been under the guardianship of their
masters so long that you cannot trust them with their own in
terests. As long as you keep them under the guardianship
either of their masters or of overseers to be appointed under
this bill, so long will they be helpless and unable to take care
of themselves. As long as you hold them up they will never
stand alone ; but the very moment you make them freemen and
secure their rights in the courts of justice, I believe they will
be fully competent to take care of themselves. This proposition
of the committee of conference only proposes a change of masters,
under the provisions of the ninth section. You appoint com
missioners who have a right to take possession of the farms,
lease them to whomsoever they please, and then they may hire
out these negroes at any price they shall agree upon between
themselves and the lessees of the lands. That is what I under-
180 GREAT AMERICAN DEBATES
stand to be the provisions of the bill, and, under such provisions,
it would introduce, in my opinion, a system of fraud and
swindling unheard of in the history of the world. You give
these poor creatures to the kind protection of broken-down poli
ticians and adventurers, and decayed ministers of the gospel,
and make them overseers to make fortunes out of these poor
creatures, and they will treat the negroes, in my opinion, under
this bill, far more cruelly than their masters under the old
slave system did.
I am opposed to the whole theory of a freedman's bureau.
I would make them free under the law; I would protect them
in the courts of justice ; if necessary, I would give them the right
of suffrage, and let loyal slaves vote their rebel masters down
and reconstruct the seceded States; but I wish to have no sys
tem of guardianship and pupilage and overseership over these
negroes.
Garrett Davis [Ky.] objected to the bill because it
would perpetuate the vicious system of trading in cotton
already inaugurated by Northern men in the subjugated
parts of the South.
There is a delusive intimation in the proposition that it is
to be made self-supporting ; but any man who is acquainted with
the South, with free negroes, and with the general subject of
the bill knows that for years and years at least this system
never can be worked so as to become self-supporting.
But the particular objection I have to it is, in the first place,
that every assistant commissioner and every superintendent of
freedmen and of abandoned lands in all the districts will be a
secret partner of every man to whom he lets these lands upon
lease and to whom he assigns any portion of the freedmen for
their cultivation. No guards or provisions which can be thrown
around the system by legislation will ever prevent it from de
generating into that abuse. Here, then, will be from twenty-
two to twenty-five assistant commissioners and from fifty to
sixty local superintendents, with their retinue of clerks and
other officers, who are by this bill required to be sustained by
the military power of the United States. That will give them
energy and give them strength by which all of their schemes
and all of the policy which they will bring into this new freed
men 's department shall be rigorously executed at the point of
the bayonet.
Mr. President, what will be the consequences? These are
THE FREEDMEN'S BUREAU 181
gentlemen in the Senate who have visited Southern plantations.
They know that the negro cabins are huddled together in the
form of villages around the mansion of the owner, and the
slaves who have been in the habit of laboring in the fields come
there at night for rest and depart in the morning to their labor.
This measure proposes that lands to the quantity of fifty acres
shall be let by the commissioner and the assistant commissioners
to the freedmen. Where will a freedman find a house in which
to shelter himself and his family upon fifty acres of a vast cot
ton estate? There are no such houses except in these villages
that are built up by the owner of the estate around his mansion.
They are not distributed and located so as to be let in tenements
of fifty acres. In addition to that, where will the freedman
get the capital to buy his horse or his oxen and his plow and
other agricultural implements to put his crop of cotton or corn
in the ground? All these require capital — capital far beyond
the ability of the freedman to command — and this fact renders
the scheme impracticable so far as it professes to be for the bene
fit of the freedman.
The inevitable result will be that the freedman will lease no
land. He will not be able to lease and to cultivate land. He
will not be able to purchase equipments of horses and agricul
tural implements that will be necessary for its cultivation.
Then he must fall into general line and become simply a laborer,
to be hired by the assistant commissioners or by the superin
tendents, and to be hired to some man with whom they are
secretly in partnership, with whom they are to share the profits
and the produce of the freedman 's labor from these abandoned
lands.
In the language of the honorable Senator from Indiana, it
will be but changing the form of slavery. There will be the
name of freedman attached to the negro, but he will be subject
to be taken by the assistant commissioners and the superintend
ents to be hired out ; and, if there is any obstacle in the way of
the performance of this duty, they are to be backed by the
military power of the United States. The consequence will be
that a few favorites and secret partners of these Government
officials, corrupted by cotton, will obtain leases of all the cot
ton lands in large bodies.
When their business will be to hire the freedmen to cultivate
the cotton fields the profits of the culture of which they are
to share, is it not inevitable that there will be vast abuse in
the discharge of the duty of hiring the freedmen by these offi
cials? They will gather them together, they will present this
182 GREAT AMERICAN DEBATES
law to the freedmen, they will show that the law itself author
izes them to command the freedmen to assemble upon any plan
tation that they may designate, to go into the service of any
lessee they may name, at any wages they may agree upon, and
the freedman, awed and intimidated by the law, becomes sub
missive and entirely obedient to the mandate of the commis
sioners and superintendents. He becomes as tractable, ay, more
tractable and obedient than he ever was to his former master
or overseer, because here is the power that has given to him the
name of freedman sending its official agents into the region of
country where he lives, exhibiting the law which authorizes those
agents to assemble and to command the attendance and the
rendezvous of the freedmen at any place they may designate, and
provides that the freedmen shall labor according to their man
date at such prices as they may agree upon. The consequence
will be inevitably that the negro will labor for the white man,
will labor for the lessee in connection and as a secret partner of
the superintendents and of the assistant commissioners. The
whole scheme will become a system of corruption, of plunder,
of fraud and oppression upon the freedmen to enrich the white
adventurers who go into the business of discharging the duties
of commissioners and superintendents.
Sir, I cannot doubt that, if the condition and relations of
parties were changed, if the Democratic party was now in
power and was wielding the vast forces of this Government, and
was endeavoring to enforce upon the Republican party out of
power the identical principles and measures which the latter
has been so swift to impose upon the whole country, the Black
Republican party would rise as one man, with one heart, and
with indomitable energy, and oppose all this policy and these
measures which they are now seeking to fasten upon the country.
By a vote of 14 yeas to 24 nays the report of the com
mittee was not concurred in.
Another joint conference committee was appointed,
consisting of Senators Henry Wilson [Mass.], James
Harlan [la.], and Waitman T. Willey [W. Va.], and
Representatives Robert C. Schenck [0.], George S.
Boutwell [Mass.], and James S. Rollins [Mo.]. It
brought forward on February 28 the bill in its final
form. Both Houses passed the bill on March 3, the vote
being taken viva voce. President Lincoln approved the
act on the same day.
THE FREEDMEN'S BUREAU 183
Edwin M. Stanton, Secretary of War, selected as the
commissioner of the bureau Gen. Oliver 0. Howard,
whose character was well indicated by the appellation
generally given him of 1 1 the Christian Soldier. ' ' James
G. Elaine, in his " Twenty Years of Congress, " says of
his administration of the bureau:
He was subjected to unreasonable fault-finding, often to
censure and obloquy; but throughout the whole he bore him
self with the honor of a soldier and the purity of a Christian —
triumphantly sustaining himself throughout a Congressional in
vestigation set on foot by political malice, and confronting with
equal credit a military inquiry which had its origin in the jeal
ousy that is often the bane of army service.
In the administration of the freedmen 's bureau it
had been found that its effectiveness was hampered by
lack of power on the part of its officers. Accordingly,
on January 12, 1866, Lyman Trumbull [111.] introduced
in the Senate from the Judiciary Committee a supple
mentary act to enlarge the powers of the bureau.
The President of the United States, through the war de
partment and through the commissioner of the bureau, was au
thorized to extend military jurisdiction and protection over all
employees, agents, and officers of the bureau; and the Sec
retary of War was authorized to issue such provisions, clothing,
fuel, and other supplies, including medical stores, and to afford
such aid as he might deem needful for the immediate and tem
porary shelter and supply of destitute refugees and freedmen,
their wives and children, under such rules and regulations as he
might direct. The President was also authorized to reserve
from sale or settlement under the homestead and preemption
laws public lands in Florida, Mississippi, and Arkansas, not
to exceed three millions of acres of good land in all, for the
use of the freedmen, at a certain rental to be named in such
manner as the commissioner should by regulation prescribe; or
the commissioner could purchase or rent such tracts of land in
the several districts as might be necessary to provide for the
indigent refugees and freedmen depending upon the Govern
ment for support.
It was further provided that wherever in consequence of any
State or local law any of the civil rights or immunities belong-
184 GREAT AMERICAN DEBATES
ing to the white persons, such as the right to enforce contracts,
to sue, to give evidence, to inherit, purchase, lease, sell, hold,
or convey real and personal property were refused or denied
to freedmen on account of race or color or any previous con
dition of slavery or involuntary servitude, or whenever they
were subjected to punishment for crime different from that
provided for white persons, it was made the duty of the Presi
dent, through the commissioner, to extend military jurisdiction
and protection over all cases affecting persons against whom
such unjust discriminations were made. But the jurisdiction
was to cease "whenever the discrimination on account of which
it is conferred shall cease," and was in no event to be exercised
in any State "in which the ordinary course of judicial proceed
ing has not been interrupted by the rebellion, nor in those States
after they shall have been fully restored to their constitutional
relations to the United States, and when the courts of the State
and of the United States, within their limits, are not disturbed
or stopped in the peaceable course of justice."
This bill was brought at the height of the contest
between President Johnson and Congress over recon
struction of the Southern States, and partisan spirit
flamed high in the ensuing debate, which covered not
only every phase of the question of negro rights, but
the constitutional aspect of Reconstruction as well.
Nearly every Senator of prominence spoke upon the bill,
and most of them with marked ability. However, since
the arguments are presented in other debates on recon
struction this one is here omitted.
The bill was passed by the Senate on January 25,
1866, by a vote of 37 to 10.
When the bill reached the House it was referred to
the Select Committee on Freedmen 's Affairs (Thomas
D. Eliot, of Massachusetts, chairman). It was promptly
reported and came to a vote on February 6, when it
passed by 136 yeas to 33 nays, a strictly partisan vote.
The most notable speech on the bill in the House was
one delivered on February 1 by Ignatius Donnelly
[Minn.], who possessed an original mind that ran along
lines out of the usual grooves of Congressional thought.
Looking beyond the satisfaction of the material needs
of the freedmen and the grant to them of civil and
THE FREEDMEN'S BUREAU 185
political rights, lie insisted that the negro needed over
and above these education, to "fit him to protect himself
in that not distant day when the bureau must necessarily
be withdrawn." It is true that he did not foresee the
special kind of education — industrial — which later such
institutions as those at Hampton, Va. (founded 1868),
and Tuskegee, Ala. (founded 1881), were established
to promote among the negroes (and, in the former case,
among the Indians also), but his speech aided in turning
the attention of Congress and the country to the general
need for negro education, and from this there sprang up
inevitably in the minds of practical philanthropists the
particular direction which such instruction should take.
Mr. Donnelly offered an amendment, providing "a
common-school education to all refugees and freedmen
who shall apply therefor." It was not adopted.
EDUCATION AND CITIZENSHIP
IGNATIUS DONNELLY, M. C.
Sir, this is a new birth of the nation. The Constitution
will hereafter be read by the light of the rebellion ; by the light
of the emancipation; by the light of that tremendous uprising
of the intellect of the world going on everywhere around us.
He is indeed fearfully cramped by the old technicalities who
can see in this enormous struggle only the suppression of a riot
and the dispersion of a mob. This struggle has been as organic
in its great meanings as the Constitution itself. It will leave
its traces upon our Government and laws so long as the nation
continues to exist.
The measure under consideration should not awaken oppo
sition. It is right and necessary. So long as oppression con
tinues, the Government must intervene in behalf of justice and
liberty, and through what machinery can it better intervene
than through this bureau?
But, sir, even more than all this is needed. What, let me
ask, is the condition of the mind of the South?
Gentlemen demand that the ballot shall be universal. They
must go further; they must insist that capacity properly to
direct the ballot shall be likewise universal.
Said Washington:
186 GREAT AMERICAN DEBATES
"In proportion as the structure of government gives force to public
opinion it is essential that public opinion should be enlightened."
Said Jefferson, in the famous ordinance of 1787 :
"Beligion, morality, and knowledge being necessary to good govern
ment and the happiness of mankind, schools and the means of education
shall be forever established."
Says Horace Mann:
"If ^Republican institutions do waken up unexampled energies in the
whole mass of the people, and give them implements of unexampled power
wherewith to work out their will, then these same institutions ought also
to confer upon that people unexampled wisdom and rectitude."
ill know we are often admonished that without intelligence and virtue as
a chart and a compass to direct us in our untried political voyage we shall
perish in the first storm; but I venture to add that without these qual
ities we shall not wait for a storm — we cannot weather a calm. If the sea
is as smooth as glass, we shall founder, for we are in a stone boat."
It is not necessary to demonstrate the importance of educa
tion. The common sense of mankind approves it ; the success of
our nation attests it ; a million happy homes in our midst pro
claim it. Education has here fused all nations into one ; it has
obliterated prejudices; it has dissolved falsehoods; it has an
nounced great truths; it has flung open all doors; and thank
God, it has at last broken all the shackles in the land ! The re
bellion sprang from popular ignorance; its suppression came
from popular education. When the Englishman described the
North as a land " where every man had a newspaper in his
pocket,7' he touched at once the vital point of our greatness and
the true secret of our success.
Let the great work go on. Its tasks are but half completed.
Let it go on until ignorance is driven beyond our remotest bor
ders. This is the noblest of all human labors. This will build
deep and wide and imperishable the foundations of our Govern
ment; this will raise up a structure that shall withstand the
slow canker of time and the open assaults of violence. The free
dom of the people resting upon the intelligence of the people !
Who shall destroy a nation founded on this rock?
The one great error of our country has been that education
was not from the very first made a matter of the State, and as
essential to the citizen as liberty itself. Education means the
intelligent exercise of liberty, and surely without this liberty is
a calamity, since it means simply the unlimited right to err.
Who can doubt that if a man is to govern himself he should
THE FREEDMEN'S BUREAU 187
have the means to know what is best for himself, what is injuri
ous to himself, what agencies work against him and what for
him ? And the avenue to all this is simply education. Suffrage
without education is an edged tool in the hands of a child —
dangerous to others and destructive to himself.
Now, what is the condition of the South in reference to all
this?
I assert that it is such as would bring disgrace upon any des
potism in Christendom.
The great bulk of the people are rude, illiterate, semi-civ-
lized; hence the rebellion; hence all the atrocious barbarities
that accompanied it.
The number of ignorant is indicated by the proportion un
able to read and write; indicated, I say, but not fully shown,
because, of the practically ignorant, of those who read neither
books nor newspapers, and are thus cut off from acquiring in
formation through its ordinary channels, the proportion who
have never learned their letters or to write their names may be
small indeed.
I repeat, the condition of the South in this respect would be
shameful to any semi-civilized people, and is such as to render
a republican government, resting on the intelligent judgment of
the people, an impossibility.
I appeal to the revelations of the census.
My statistics do not include the former slaves, but the white
people of the South and the few freed negroes found among
them in 1860.
It appears from the census that the adult male white and
free negro population of the United States, in 1860, over twenty
years of age, who could not read and write was but little short
of half a million. In other words, that in the last presidential
election, if the entire population of the United States had voted,
half a million votes would have been cast by men who could not
read and write.
When we recollect that upon our presidential elections de
pend the great interests and the life of the country, and re
motely the cause of all mankind, we may well stand appalled
before this vast force of half a million ignorant men deciding
the destinies of the world.
But if we look exclusively at the Southern States we find
still greater cause for surprise and alarm.
The census shows that in 1860 in the seven Southern States
of Delaware, Virginia, North Carolina, Tennessee, Alabama,
Arkansas, and Kentucky there were 140,036 illiterate males,
188 GREAT AMERICAN DEBATES
over 20 years of age, able neither to read nor to write. In the
same year 715,551 votes were cast for presidential electors. Thus
about one man in five was illiterate.
If, however, we add to each man entirely illiterate one other
who, while able to read and write his name, derives no practical
advantage from these mere rudiments of education in forming
his opinions, we will find the total to be more than one-third of
the total vote.
The total number of illiterate in the Southern States in
1860, over twenty years of age, exclusive of the then slaves, was
545,177. In these, with the comparatively ignorant associated
with them, we see the upholders of the rebellion at the ballot
box and in the field. Without these it could never have been
inaugurated, or if inaugurated could never have maintained it
self for six months against the mighty levies of the Union.
But, it may be said, these evils will correct themselves. The
testimony is all the other way:
From 1840 to 1860, a period of twenty years, the number of
illiterate over twenty years rose from 549,693 to 1,218,311; in
other words, an increase of considerably more than one hundred
per cent. !
At the same ratio of growth, in 1920 it would amount to the
enormous total of 12,596,688.
Who will pretend that with such a mass of ignorance the
Government could survive? It would be buried in the most
disgraceful anarchy the world has ever seen.
But, Mr. Speaker, even these appalling figures do not tell
the whole story. These figures do not include the then slaves,
now freedmen. We must add to the ignorant population of the
South the 4,000,000 blacks just released from slavery. Giving
these their natural increase, in 1920, when it is supposed that
the total population will be 120,000,000, the illiterates will be
18,591,500, one-fifth of the entire number and nearly one-third
of the entire vote.
I trust, then, that no gentleman will doubt the propriety of
the amendment I have submitted. We are interfering in behalf
of the negro; let us interfere to educate him. We thus strike
out at one blow a large proportion of the ignorance of the South ;
we shame the whites into an effort to educate themselves, and we
prepare thus both classes for the proper exercise of the right of
suffrage.
Nor shall it be said that the ignorance revealed by these sta
tistics is an exotic, that it results from foreign immigration.
While it is true that in the North a large proportion of the
THE FREEDMEN'S BUREAU 189
illiterate are from foreign lands, in the South, the reverse is the
ease. In North Carolina, in 1860, the illiterate persons of na
tive birth were 74,877, while those of foreign birth were but 100.
We find that the Southern States have a population about
equal to the Middle and Western States combined, while the
number of illiterate in the former is 545,177, as against 241,854
in the latter ; and this not including the vast number of illiterate
freedmen in the South, who would make the disproportion still
greater. So that the South outnumbers in illiterate the most un
favorable portions of the North more than two to one.
Who can fail to see in this vast disproportion the cause of
the rebellion ? In the language of Henry Ward Beecher :
"As upon the coast you can trace the line between the dark and
treacherous sea on the one hand, and the firm and trusty land on the other,
by the row of light-houses; so you can mark between the deep, damnable
wickedness of treason and the supernal luster of patriotism by the line of
schoolhouses. ' '
Now, Mr. Speaker, I put it to this House, and through it to
the whole people of the country, North and South, whether this
state of things is to continue. This is not a political question.
It rises above the level of politics and directly affects the wel
fare of all the people and the life of the nation itself.
If, sir, this enormous growth of ignorance is to continue we
can meet with no fate save that which has overtaken too many
of the free governments of the world.
We cannot count upon our representative system. The strug
gle we have gone through shows too plainly that reforms must
originate with the people. The people may be converted, the
representatives never. They are precisely what the people be
hind them are, and no more. If the people are ignorant, they
will have demagogues for their representatives.
The preservation of this Government through the many
dangers that have encompassed it since its birth I look upon as
the marvel of modern times. The hand of God is plainly visible
in it. Let us do our part now to prepare the way for the mighty
future that awaits us. There is no loftier task on earth.
We cannot leave the population of the South, white or black,
in the condition they are now in. We must educate them.
When you destroy ignorance you destroy disloyalty; for what
man with a free, broad scope of mind, and with a knowledge
of all the facts, can fail to love this just, benevolent, and most
gentle Government?
Let us turn, then, to the next consideration. What chance
190 GREAT AMERICAN DEBATES
is there for the black man in the South without the intervention
of this bureau?
We have liberated four million slaves in the South.
It is proposed by some that we stop right here and do noth
ing more. Such a course would be a cruel mockery.
These men are without education, and morally and intel
lectually degraded by centuries of bondage. They have neither
the arts nor the knowledge nor the power of combination to pro
tect themselves against the superior race from whose grasp they
have just been forcibly wrested. That race did not willingly
yield them up ; to abandon them to their former masters would
be to consign them once more to inevitable slavery. The master
would have every inducement to reenslave his former bondman,
and not a single barrier would stand in his way.
But it may be said the amendment to the Constitution pro
hibiting slavery would protect them. Sir, a grand abstract
declaration, unenforced by the arm of authority, is not a pro
tection.
Slavery consists in a deprivation of natural rights. A man
may be a slave for a term of years as fully as though he were
held for life ; he may be a slave when deprived of a portion of
the wages of his labor as fully as if deprived of all ; he may be
held down by unjust laws to a degraded and defenceless condi
tion as fully as though his wrists were manacled ; he may be op
pressed by a convocation of masters called a legislature as fully
as by a single master. In short, he who is not entirely free is
necessarily a slave.
What has the South done for the black man since the close
of the rebellion ?
/^Let us examine the black codes of the different States adopted
/since that time.
In South Carolina it is provided that all male negroes be
tween two and twenty, and all females between two and eighteen,
shall be bound out to some ''master." The adult negro is com
pelled to enter into contract with a master, and the district
judge, not the laborer, is to fix the value of the labor. If he
thinks the compensation too small and will not work, he is a
vagrant, and can be hired out for a term of service at a rate
again to be fixed by the judge. If a hired negro leaves his em
ployer he forfeits his wages for the whole year.
The black code of Mississippi provides that no negro shall
own or hire lands in the State ; that he shall not sue nor testify
in court against a white man; that he must be employed by a
master before the second Monday in January, or he will be
THE FREEDMEN'S BUREAU 191
bound out — in other words, sold into slavery; that if he runs
away the master may recover him and deduct the expenses out
of his wages; and that if another man employs him he will be
liable to an action for damages.
The black code of Alabama provides that if a negro who has
contracted to labor fails to do so he shall be punished with dam
ages; and if he runs away he shall be punished as a vagrant,
which probably means that he shall be sold to the highest bid
der for a term of years; and that any person who entices him
to leave his master, as by the offer of better wages, shall be
guilty of a misdemeanor, and may be sent to jail for six months ;
and, further, that these regulations include all persons of negro
blood to the third generation, though one parent in each genera
tion shall be pure white ; that is, down to the man who has but
one-eighth negro blood in his veins.
The Mississippi legislature passed a law prohibiting negroes
from acquiring lands or real estate. This was promptly over
ruled by the United States authorities. Whereupon the legisla
tures of Mississippi and Alabama passed laws making the owner
of the property, who rents or leases a negro a house or land,
responsible for everything he buys — his meat, his bread, his doc
tor's bill, and even his taxes. Of course no one will rent a black
man a house or lease him land under such a law ; and of course
also the negro will have to be driven out upon the highway
and become a vagrant, and thus become subject to the vagrant
law.
The black code of Tennessee provides that the vagrant negro
may be sold to the highest bidder to pay his jail fees; and to
make sure that he be kept a vagrant no housekeeper shall har
bor him; his children may be bound out against his wish to a
master by the county court; if his master fails to pay him he
cannot sue him nor testify against him. It further provides
that colored children shall not be admitted into the same schools
with white children, while it makes no provision for their educa
tion in separate schools.
The black code of Virginia provides that any man who will
not work for "the common wages given to other laborers" shall
be deemed a vagrant ; the masters have formed combinations and
have put down the rate of wages to the freedmen below a living
price ; the negro refusing to work for these wages is seized as a
vagrant, sold to service "for the best wages that can be pro
cured" for three months; if he runs off he shall work another
month with ball and chain for nothing.
It is true General Terry has declared that the order shall not
192 GREAT AMERICAN DEBATES
be enforced ; but of what avail will this be when the military are
withdrawn and Virginia is reconstructed ?
All this means simply the reestablishment of slavery :
1. He shall work at a rate of wages to be fixed by a county
judge or a legislature made up of white masters, or by combina
tions of white masters, and not in any case by himself.
2. He shall not leave that master to enter service with an
other. If he does he is pursued as a fugitive, charged with the
expenses of his recapture, and made to labor for an additional
period, while the white man who induced him to leave is sent
to jail.
3. His children are taken from him and sold into virtual
slavery.
4. If he refuses to work he is sold to the highest bidder for
a term of months or years, and becomes in fact a slave.
5. He cannot better his condition; there is no future for
him; he shall not own property; he shall not superintend the
education of his children ; neither will the State educate them.
6. If he is wronged he has no remedy, for the courts are
closed against him.
Said a Georgian the other day:
"The blacks eat, sleep, move, live, only by the tolerance of the whites,
who hate them. The blacks own absolutely nothing but their bodies; their
former masters own everything, and will sell them nothing. If a black
man draws even a bucket of water from a well, he must first get the per
mission of a white man, his enemy. If he sleeps in a house over night, it
is only by the leave of a white man. If he buys a loaf of bread, he must
buy of a white man. If he asks for work to earn his living, he must ask
it of a white man; and the whites are determined to give him no work,
except on such terms as will make him a serf and impair his liberty.".
This, then, is slavery, less the protection which the master
formerly afforded his chattel. The slave now has a mob for his
master. General Schurz says, in his admirable report :
"The emancipation of the slaves is submitted to only in so far as
chattel slavery in the old form could not be kept up. But although the
freedman is no longer considered the property of the individual master, he
is considered the slave of society; and all independent State legislation
will show the tendency to make him such. The ordinances abolishing
slavery, passed by the conventions under the pressure of circumstances,
will not be looked upon as barring the establishment of a new form of
servitude. ' '
The enemies of the black man, those who opposed his libera
tion, now point to him and say, * ' See the condition to which you
THE FREEDMEN'S BUREAU 193
have reduced him. He is worse off than before. His race is
perishing from the face of the earth under the innumerable
miseries which liberty has inflicted upon it."
For one, with the help of Almighty God, I shall never con
sent to such cruel injustice. Having voted to give the negro lib
erty, I shall vote to give him all things essential to liberty.
If degradation and oppression have, as it is alleged, unfitted
him for freedom, surely continued degradation and oppression
will not prepare him for it. If he is not to remain a brute you
must give him that which will make him a man — opportunity.
If he is, as it is claimed, an inferior being and unable to com
pete with the white man on terms of equality, surely you will
not add to the injustice of nature by casting him beneath the
feet of the white man. With what face can you reproach him
with his degradation at the very moment you are striving to
still further degrade him ? If he is, as you say, not fit to vote,
give him a chance ; let him make himself an independent laborer
like yourself ; let him own his homestead ; let the courts of jus
tice be opened to him; and let his intellect, darkened by cen
turies of neglect, be illuminated by all the glorious lights of
education. If after all this the negro proves himself an un
worthy savage and brutal wretch, condemn him, but not till
then.
He must have this opportunity. He cannot remain in an am
phibious condition between liberty and slavery. He must be
either full slave or full freeman; he must either be master of
himself or the servant of another.
Do not believe the delusive hope uttered by some that the
race which has all the privileges will some day willingly divide
them with the race that has none. The world's history tells no
such story. The Old World's royalties and aristocracies rest
upon ancient conquests ; and yet how unwilling, even after cen
turies have passed, have the victors ever been to permit the van
quished to rise! Let the wretched condition of the masses in
those countries at the present day testify.
Is the right of suffrage necessary to the negro ?
The right to vote is the right of self-protection, through the
possession of a share in the Government. Without this a man's
rights lie at the mercy of other men who have every selfish in
centive to rob and oppress him. This is the great central idea
of a republican government. The absence of this is the source
of all despotism. I would ask, what white man would consider
himself safe without the right to vote, especially if the Govern
ment was exercised exclusively by a hostile race?
VII— 13
194 GREAT AMERICAN DEBATES
What shield and safeguard can the negro have if it he not
the right to vote? To whom can he appeal when the highest
earthly tribunals are filled by his enemies?
No man can rest with safety upon the mercy and generosity
of any other man. The law protects the ward from its guardian,
the child from its parent, the wife from her husband, nay, even
the dumb brute from its owner. Can we, then, as the Represen
tatives of a free people, consign a helpless race to the mercy of
its hereditary oppressors? Can we, in the heart of a free gov
ernment, permit the erection of such a strange and abnormal
system of despotism?
Mr. Speaker, it is as plain to my mind as the sun at noonday
that we must make all the citizens of the country equal before
the law; that we must break down all walls of caste; that we
must offer equal opportunities to all men.
Injustice is the mother of revolutions. In no case has rebel
lion raised its head in the midst of equal laws; for what more
can a man ask than equality ? But I challenge the historian to
point to a single community where unjust laws have not sooner
or later given birth to revolution; to the efforts of one class to
perpetuate and of the other to resist injustice.
If you give the negro an equal opportunity with the white
man he becomes perforce a property-holder and a law-maker,
and he is interested with you in preserving the peace of the
country. If you hand him over to oppression, if you deprive
him of all hope, if you debase him into a brute, you can expect
nothing from him but poverty, turbulence, and wretchedness.
If, then, your object, if the object of all government, is to ad
vance the prosperity of the people, can you do so by ruining one-
eighth of the entire population?
The true issue before the South is justice or anarchy. We
must save the South from herself. The negroes now know them
selves to be freemen. They may be made savages, but never
again slaves. The cruel, heartless course the South seems bent
on pursuing will sooner or later set the land aflame with insur
rection. And in that day are we ready, we, the Christian people
of the North, to hold down with our armies the poor writhing
wretches who will tell us that their title deeds of liberty bear
our superscription; and who will fling into our faces while we
are manacling them the sacred promises of the proclamation of
emancipation ? Never ! never ! This thing cannot be. Our own
hearts would revolt at it ; the world would cry us : Shame ! The
name of American would become an epithet of contempt in the
mouth of all mankind.
THE FREEDMEN'S BUREAU 195
We must hold our faith. We made great vows to God when
the fury of the tempest smote us, and night and darkness seemed
settling down upon our frail bark forever. Let us not, like the
drunken sailors of the Mediterranean, abandon those vows amid
the profligacy of the harbor. It becomes a great people to hold
its faith as the most sacred thing beneath the wide canopy of
the heavens.
If it is, then, true that we must make the freedmen fully
free, and, if the right of suffrage is necessary to this freedom,
then it is equally necessary that education should accompany
freedom.
Pass the amendment I have proposed, and the Freedman's
Bureau will not only protect the negro now but give him the
means of self-protection hereafter. Without this the ballot is a
useless, perhaps a pernicious, instrument in his hands. Without
this your bureau will be but a temporary relief, and in a short
time the negro will relapse into oppression. Educate him, and
he will himself see to it that common schools shall forever
continue among his people; and in doing him an act of justice
you will increase the safety of the nation forever.
Let not the objection of expense be made. No outlay is too
great which is necessary to the safety of the people, since in that
is involved all the wealth of the country. It is a madman's
economy to save money by rendering the people unfit for self-
government and then lose all in the misgovernment which is
sure to follow.
Universal education must go hand in hand with universal
\suffrage. Either alone will be unavailing; together they will
create the mightiest government and the ablest race the world
(has ever known.
If you pass the amendment I have offered, the Freedman's
Bureau becomes an instrumentality of more good than was ever
before achieved in the world by any merely human agency. Its
influence will be greater than even Jefferson's famous ordinance,
which gave to freedom the Northwestern Territory. And who
shall count the results yet to flow from that great measure?
A thoroughly educated negro population in the South means a
white population forced into education through mere shame;
it means an intelligent and, necessarily, a loyal people ; it means
industry, prosperity, morality, and religion everywhere; a land
rejoicing in wealth and glorious with liberty.
The bill was vetoed by President Johnson on Febru
ary 19 for the following reasons: (1) that it abolished
196 GREAT AMERICAN DEBATES
trial by jury in the South, and substituted trial by court-
martial; (2) that this abolition was apparently perma
nent, not temporary; (3) that the bureau was a costly
and demoralizing system of poor relief; and (4) that
Congress had no power to apply the public money to
any such purpose in time of peace.
The Senate voted upon the veto the day after it was
received, 30 yeas to 18 nays, less than the two-thirds ma
jority required to override it.
A mass meeting was held in Washington on Wash
ington's birthday, to approve the President's action.
The meeting adjourned to the White House, where the
President made a long and abusive harangue against
his Eepublican opponents, whom he arraigned by name.
Saying that he had "fought traitors and treason in the
South, " he let it be inferred that he was in a similar
contest in the North and would wage it with equal fear
lessness. Beginning to recount his own career from
humble beginnings, he was interrupted by a voice from
the crowd reminding him that he had been a tailor,
whereupon he said he had not done " patchwork " then,
nor did he propose to do it now. He " wanted the whole
suit," and it was not his practice to fail to perform what
he had pledged himself to do. He said that a Congress
man had said that he, the President, ought to be put out
of the way of the bill. Interpreting this as a threat of
assassination, he asked:
' ' Does not the murder of Lincoln appease the vengeance and
wrath of the opponents of this Government? Are they still
unslaked? Do they still want more blood? I am not afraid
of the assassin attacking me where a brave and courageous man
would attack another. I dread him only when he would go in
disguise, his footsteps noiseless. If it is blood they want let
them have courage enough to strike like men. ' '
Later in the session (May 22) a bill was introduced
in the House of Representatives by Thomas D. Eliot
[Mass.] from the Select Committee on Freedmen's Af
fairs, continuing in force, with amendments, the act in
existence. It was so framed as to escape the objections
THE FREEDMEN'S BUREAU 197
which had caused Republican Senators to sustain the
President's veto of its predecessor. The most impor
tant changes were the limitation of the act to two years
and the reduction of the sweeping judicial powers ac
corded the bureau. It also contained a new provision
for applying the property of the ex-rebel States to the
education of the freedmen — evidently a result of Mr.
Donnelly's speech. It was not extensively debated, and
came to a vote in the House on May 29, when it was
passed — yeas 96, nays 32. The Senate passed it, viva
voce, on June 26. Owing to the press of other business
it did not reach the President until the first week of
July. He vetoed it on the 16th for the same general
grounds given in his first veto. On the same day it was
passed over the veto: in the House by 104 yeas to 33
nays, and in the Senate by 33 yeas to 12 nays.
At the expiration of the statute, in June, 1868, the
bureau was continued by law for one year longer in un
reconstructed States. August 3, 1868, a bill was passed
over the veto, providing that General Howard should not
be displaced from the commissionership, and that he
should withdraw the bureau from the various States by
January 1, 1869, except as to its educational work, which
did not stop until July 1, 1870. The collection of pay
and bounties for colored soldiers and sailors was con
tinued until 1872 by the bureau, when its functions were
assumed by the usual channels of the War Department.
Total expenditures of the Freedmen 's Bureau, March,
1865-August 30, 1870, were reported at $15,359,092.27.
CHAPTEE VIII
SUSPENDED SOVEREIGNTY OR STATE SUICIDE!
[RECONSTRUCTION OF REBELLIOUS STATES]
Message and Proclamation of President Lincoln on Amnesty and Recon
struction — Henry Winter Davis [Md.] Moves in the House of Repre
sentatives a Resolution Guaranteeing a "Republican Form of Govern
ment" to the States in Rebellion — Debate: in Favor, Mr. Davis, Fer
nando C. Beaman [Mich.] — Resolution Is Referred to a Special Com
mittee, Which Reports a Bill for Reconstructing Governments of These
States — Debate on the Bill: in Favor, Nathaniel B. Smithers [Del.],
Thomas Williams [Pa.], M. Russell Thayer [Pa.], Ignatius Donnelly
[Minn.], Thaddeus Stevens [Pa.], Sidney Perham [Me.], James M.
Ashley [O.], Daniel W. Gooch [Mass.], William D. Kelley [Pa.], George
S. Boutwell [Mass.]; Opposed, James C. Allen [111.], Charles Denison
[Pa.], Myer Strouse [Pa.], James A. Cravens [Ind.], Francis D. Ker-
nan [N. Y.], Nehemiah Perry [N. J.], Fernando Wood [N. Y.], Samuel
S. Cox [O.], George H. Pendleton [0.] ; the Bill Is Passed by House
and Senate — The President Refuses to Sign It, and Gives His Reasons
in a Proclamation, in Which He Also Sustains Reconstruction by Exec
utive Authority — Protest of Senators Davis and Benjamin Wade [0.] —
Reconstruction Bill Proposed in Next Session of Congress; It Is
Tabled — Speech of President Lincoln on Reconstruction of Seceded
States: "At Home Again in the Union."
THE subject of reconstruction of the seceded State
governments was, during the Civil War, consid
ered almost entirely in its constitutional aspect,
and the debates thereon at that time properly belong
to Volume V, treating of State Eights. However, after
the war, the question of the maintenance of Civil Eights,
especially of the negro, became the crucial issue in set
ting up loyal State governments in the South. That the
subject may not be divided in treatment, all the debates
upon reconstruction are presented in the present vol
ume.
198
RECONSTRUCTION IN WAR TIME
199
President Lincoln first broached the subject of re
construction in his annual message of December 8, 1863,
which he accompanied with a proclamation on the sub-
aKe it qutitiy VXCLZ ABf^n
uut-U Ci!f-<yw ut CLOser /Via//
THE RAIL-SPLITTER [LINCOLN] AND TAILOR [JOHNSON] REPAIRING THE UNION
From the collection of the New York Historical Society
ject, combined with an offer of amnesty to former rebels
taking oath of allegiance to the United States Govern
ment.
Of this proclamation he said in his message:
On examination it will appear, as is believed, that nothing
is attempted beyond what is amply justified by the Constitu
tion. True, the form of an oath is given, but no man is coerced
to take it. The man is only promised a pardon in case he
voluntarily takes the oath. The Constitution authorizes the
Executive to grant or withhold the pardon at his own absolute
discretion; and this includes the power to grant on terms, as
is fully established by judicial and other authorities.
It is also proffered that if, in any of the States named, a
State government shall be, in the mode prescribed, set up, such
government shall be recognized and guaranteed by the United
200 GREAT AMERICAN DEBATES
States, and that under it the State shall, on the constitutional
conditions, be protected against invasion and domestic violence.
The constitutional obligation of the United States to guarantee
to every State in the Union a republican form of government,
and to protect the State in the cases stated, is explicit and full.
But why tender the benefits of this provision only to a State
government set up in this particular way? This section of the
Constitution contemplates a case wherein the element within a
State favorable to republican government in the Union may be
too feeble for an opposite and hostile element external to, or
even within, the State; and such are precisely the cases with
which we are now dealing.
An attempt to guarantee and protect a revived State govern
ment, constructed in whole, or in preponderating part, from the
very element against whose hostility and violence it is to be
protected, is simply absurd. There must be a test by which to
separate the opposing elements, so as to build only from the
sound ; and that test is a sufficiently liberal one which accepts
as sound whoever will make a sworn recantation of his former
unsoundness.
But if it be proper to require, as a test of admission to the
political body, an oath of allegiance to the Constitution of the
United States, and to the Union under it, why also to the laws
and proclamations in regard to slavery ? Those laws and procla
mations were enacted and put forth for the purpose of aiding in
the suppression of the rebellion. To give them their fullest
effect, there had to be a pledge for their maintenance. In my
judgment they have aided, and will further aid, the cause for
which they were intended. To now abandon them would be not
only to relinquish a lever of power, but would also be a cruel and
an astounding breach of faith. I may add, at this point that,
while I remain in my present position, I shall not attempt to
retract or modify the Emancipation Proclamation; nor shall I
return to slavery any person who is free by the terms of that
proclamation, or by any of the acts of Congress. For these
and other reasons it is thought best that support of these meas
ures shall be included in the oath ; and it is believed the Execu
tive may lawfully claim it in return for pardon and restoration
of forfeited rights, which he has clear constitutional power to
withhold altogether, or grant upon the terms which he shall
deem wisest for the public interest.
It should be observed, also, that this part of the oath is sub
ject to the modifying and abrogating power of legislation and
supreme judicial decision.
RECONSTRUCTION IN WAR TIME 201
The proposed acquiescence of the national Executive in any
reasonable temporary State arrangement for the freed people
is made with the view of possibly modifying the confusion and
destitution which must at best attend all classes by a total revo
lution of labor throughout whole States. It is hoped that the
already deeply afflicted people in those States may be somewhat
more ready to give up the cause of their affliction, if, to this
extent, this vital matter be left to themselves; while no power
of the national Executive to prevent an abuse is abridged by
the proposition.
The suggestion in the proclamation as to maintaining the
political framework of the States on what is called reconstruction
is made in the hope that it may do good without danger of
harm. It will save labor and avoid great confusion.
But why any proclamation now upon this subject? This
question is beset with the conflicting views that the step might
be delayed too long or be taken too soon. In some States the
elements for resumption seem ready for action, but remain in
active apparently for want of a rallying-point — a plan of action.
Why shall A adopt the plan of B, rather than B that of A?
And, if A and B should agree, how can they know but that the
general Government here will reject their plan? By the procla
mation a plan is presented which may be accepted by them as a
rallying-point, and which they are assured in advance will not be
rejected here. This may bring them to act sooner than they
otherwise would.
The objection to a premature presentation of a plan by the
national Executive consists in the danger of committals on
points which could be more safely left to further developments.
Care has been taken to so shape the document as to avoid em
barrassments from this source. Saying that, on certain terms,
certain classes will be pardoned, with rights restored, it is not
said that other classes, or other terms, will never be included.
Saying that reconstruction will be accepted if presented in a
specified way, it is not said it will never be accepted in any
other way.
The movements, by State action, for emancipation in sev
eral of the States not included in the Emancipation Proclama
tion, are matters of profound gratulation. And while I do
not repeat in detail what I have heretofore so earnestly urged
upon this subject, my general views and feelings remain un
changed; and I trust that Congress will omit no fair oppor
tunity of aiding these important steps to a great consumma
tion.
202 GREAT AMERICAN DEBATES
RECONSTRUCTION PROCLAMATION
The proclamation in regard to reconstruction con
tained the following provisions:
1. It offered amnesty to all but specified classes of leading
men;
2. It declared that a State government might be recon
structed as soon as one-tenth of the voters of 1860, qualified by
State laws, "excluding all others/' should take the prescribed
oath;
3. It declared that, if such State government were republi
can in form, it should "receive the benefits" of the guaranty
clause ;
4. It excepted States where loyal governments had always
been maintained; but,
5. It added the caution that the admission of Senators
and Representatives was a matter exclusively "resting with
the two Houses, and not to any extent with the Executive."
The proclamation further remarked that "any provision which
may be adopted by such State government in relation to the freed
people of such State, which shall recognize and declare their
permanent freedom, provide for their education, and which may
yet be consistent, as a temporary arrangement, with their pres
ent condition as a laboring, landless, homeless class, will not be
objected to by the national Executive."
The amnesty offered was accepted by very few persons.
On March 22, 1864, Henry Winter Davis [Md.] suc
ceeded in getting before the House of Representatives a
resolution which lie had offered early in the session,
guaranteeing to States in rebellion "a republican form
of government."
GOVERNMENTS FOR REBELLIOUS STATES
HOUSE OF REPRESENTATIVES, MARCH 22-MAY 4, 1864
Mr. Davis spoke as follows upon his resolution:
The vote of gentlemen upon this measure will be regarded
by the country with no ordinary interest. Their vote will be
taken to express their opinion on the necessity of ending slavery
RECONSTRUCTION IN WAR TIME 203
with the rebellion, and their willingness to assume the responsi
bility of adopting the legislative measures without which that
result cannot be assured, and may wholly fail of accomplishment.
The measure now proposed, or any adequate and proper measure
to accomplish its purpose, is entitled to the support of all gen
tlemen upon this side of the House, 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 Consti
tution 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 gentle
men upon the other side of the House who honestly and delib
erately express their judgment that slavery is dead. To them
it puts the question whether it is not advisable to bury it out of
sight that its ghost may no longer stalk abroad to frighten us
from our propriety.
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 Con
stitution refers, in the first place, to our judgment, subject to
no revision but that of the people. It recognizes no other tri
bunal. 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. It is intended to meet all the emergencies of the
national life.
It is the result of every principle of law that there can be
no republican government within the limits of the United
States that does not recognize, but does repudiate, the Consti
tution, and which the President and the Congress of the United
States do not, on their part, recognize. Those that are here
204 GREAT AMERICAN DEBATES
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, inaugu
rated as the permanent governments of the States, contrary to
the supreme law of the land, arrayed in arms against the Govern
ment 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.
The Supreme Court of the United States in declining juris
diction of political questions such as these, in the famous Rhode
Island cases, declared, by the mouth of Chief Justice Taney,
in the presidency of John Tyler, 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 Con
gress is now executing by its armies. He 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.
What jurisdiction does the duty of guaranteeing a republican
government confer, under present circumstances, upon Congress ?
What laws may it pass ? 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 recog
nize a government which does not recognize the Constitution
is absurd, for a government is not a constitution ; and the recog
nition 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 citi
zens 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
RECONSTRUCTION IN WAR TIME 205
alternative of anarchy as the constitutional condition of a State
is to assert the failure of the Constitution and the end of repub
lican 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 ab
sence of all State government, the duty is imposed on Congress
to provide by law to keep the peace, to administer justice, to
watch over the transmission of decedents' estates, to sanction
marriages; in a word, 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 re
publican government for themselves, and Congress shall recog
nize that government.
But we have not yet suppressed the insurrection. We are
still engaged in removing armed rebellion. Is it yet time to
reorganize the State governments, or is there not an intermediate
period in which sound legislative wisdom requires that the au
thority 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, un
disturbed by the sound or fear of arms, and under the guidance
of law?
What is the condition of the rebellion at this time? There
is no portion of the rebel States where peace has been so far
restored that our military power can be withdrawn for a mo
ment without instant insurrection. 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. Only in West Virginia,
and possibly Tennessee, does our authority exist. You can get a
handful of men in the other seceded 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 are resolved
at every hazard to maintain it.
The loyal masses of the South, of which we hear so much,
what was their temper at the outbreak of the rebellion ? what is
their temper now? It is the most astounding spectacle in his
tory 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
206 GREAT AMERICAN DEBATES
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 !
Doubtful of the issues of the war, exhausted by bloodshed,
anxious for peace — peace and independence — there are some
who will accept peace and union, but they are not men who will
draw the sword for the United States, and they would be equally
content with peace and independence.
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
" Chaos umpire sits,
And by decision more embroils the fray
By which he reigns."
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 with
out 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 and the laws 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, not
merely pushed back, then call upon the people to reorganize 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, a republican government in the form that the
people of the United States can agree to.
Now, for that purpose there are three modes indicated. One
is to remove the cause of the war by an alteration of the Con
stitution of the United States prohibiting slavery everywhere
within its limits. That, sir, goes to the root of the matter, and
RECONSTRUCTION IN WAR TIME 207
should consecrate the nation's triumph. But there are thirty-
four States — three-fourths of them would be twenty-six. I be
lieve 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.
The next plan is that inaugurated by the President of the
United States in the proclamation of the 8th 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 author
ity to control and judge of the election. But if, in any man
ner, by the toleration of martial law lately proclaimed the
fundamental law, under the dictation of any military au
thority, or under the prescriptions of a provost marshal, some
thing in the form of a government shall be presented, repre
sented 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 guaranty of law to
watch over the organization of that government. It may com
bine 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 Con
gress, nor a State government, something as unknown to the
Constitution as the rebel government that refuses to recognize it.
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 proclama
tion therefore recognizes the existence of slavery. It does just
exactly what all the constitutions of the rebel States prior to
the rebellion did. It recognizes the existence of slavery, and
they recognize the existence of slavery; 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
say nothing of the kind. They do not even establish slavery.
208 GREAT AMERICAN DEBATES
There is not a constitution in all the rebel States that formally
declares slavery to be the supreme law of the land. 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 recog
nition. No man will say that there is one word in their laws
that contravenes what purports to be a paramount, not a subordi
nate, order. So soon as the State government is recognized the
operation of the proclamation becomes merely a judicial ques
tion. The right of a negro to his freedom is a legal right divest
ing a right of property, and is to be enforced in the courts ; and
then the question is what the courts will say about the procla
mation. 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 ? These are the only questions open
under such a government; and how local State courts created
by the Southern people will decide such a question no one can
doubt ; for it is quite certain that the great mass of that popula
tion is devoted to the system of slave labor ; and, though if the
question be whether they will give up slavery as the condition
precedent to the restoration of a State government, they will
abandon it ; yet if it be whether they prefer to maintain or abol
ish slavery, there is not the least doubt that their voice would
be almost unanimous for its maintenance. If they have the de
cision we know what it will be already. 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.
It is a question whether each individual negro be free. It is a
question whether the master has the right of seizure, or the
negro can control himself. It is to be determined by the writ of
habeas corpus. It is a question of personal right, not a question
of political jurisdiction. Its fate in the State courts is certain.
Its fate in the courts of the United States under existing laws
is scarcely doubtful.
Fernando C. Beaman [Mich.] supported the resolu
tion. He denied the doctrine of secession and insisted
that, though a State might commit treason, it was still
the imperative duty of the national authority to provide
RECONSTRUCTION IN WAR TIME 209
a government for the people and restore domestic tran
quillity.
In the beginning of the war, he said, the Government
was very cautious that it should do nothing which might
admit, even inferentially, that the rebel States had in
law seceded. We did not clearly distinguish between
abandonment or abrogation and legal secession. We did
not immediately discover that the destruction of local
government had prepared the way for the substitution
of Federal authority. Hence State laws, especially in
regard to slaves, were respected by the generals in the
field.
Even in this hall, for a long time during the last Congress,
we exhibited the farce of calling on South Carolina and her sis
ter conspirators for bills and resolutions. In July, 1862, the
President — with his habitual caution and prudence, and in con
sonance, it is believed, with a very extensive public sentiment, in
a solemn document in relation to the confiscation act laid before
both Houses of Congress — declared that it was ' ' startling to say
that Congress can free a slave within a State"; and yet, on the
1st day of January following, he issued a proclamation that will
render his name as famous and imperishable as that of Washing
ton, in which he declared freedom to nearly all the slaves in the
seceded districts.
But now we have advanced from this position. We have,
after much delay, determined to confiscate the property of
rebels. We no longer drive back the fugitive from oppression to
miserable bondage. We no longer force him against his will to
prosecute acts of treason and rebellion, but we invite him to par
take of the blessings of freedom ; we give him a musket, and rank
him among the defenders of the country. We have determined
to prosecute the war in accordance with the laws of nations, dis
regarding the pretended constitutional claims of rebels in arms.
Still, sir, there is some difference of opinion in the country in
regard to the proper mode of treating those States and in respect
to the power of Congress over them. I regard the difference of
opinion on this side of the House as one rather of terms than
of ideas, of theory rather than of practice. Whether, as it seems
to me, the State is out of existence, or as is alleged by the gen
tleman from Maryland [Mr. Davis] the State survives, but the
Government is abrogated and the Constitution is "absolutely
dead" (which I think is substantially the same proposition),
VII— 14
210 GREAT AMERICAN DEBATES
"and incapable of revival except by a revolutionary process";
or, as is affirmed by the gentleman from Pennsylvania [Thad-
deus Stevens] , the seceded States are foreign powers, is not per
haps material to the present discussion. The important inquiry
is not what technical words will most aptly define the anomalous
condition of the seceded districts, but the pertinent, practical
questions are, What can we do with them? How far can the
National Government exercise jurisdiction within its own terri
torial limits? To what extent may it intervene to protect its
own loyal citizens in the midst of rebels? What are its powers
as an agent in the reestablishment of lawful State governments,
and to what extent may it provide for security in the future ?
Each of the theories to which I have referred asserts all the
power necessary to warrant the passage of the bill in question,
as well as all the authority that I have ever deemed requisite for
a safe construction of the Government. If the State be abro
gated we may permit a new creation with such restrictions as we
may be pleased to direct. If the State survives, but her consti
tution and government have been destroyed, we may allow a
reorganization under such conditions and with such limitations
as we see proper to impose. If the State has become a foreign
power, then, as a conquered province, we may treat her as a part
of the national domain ; and in either case we may provide for
her people suitable government and for such length of time as
she shall be unable to resume her place in the Union. Indeed,
we are solemnly bound by the organic law to "guarantee to
every State in this Union a republican form of government."
But how ? What is the construction of this provision, and what
is the extent of the obligation ? It is clear that it does not bind
the Union in any case to maintain a State government. Such an
obligation would be as absurd as it would be impossible of per
formance.
This clause in the Constitution, by misconstruction, as it
seems to me, has led the minds of gentlemen into the strangest
and wildest mystification. They argue that as a necessary con
sequence of its existence, both in law and in fact, a State once or
ganized and admitted into the Union will ever remain a legiti
mate, organized State; and, therefore, assuming this as a postu
late, it is alleged that in theory a State cannot secede. Whether
there may be secession in fact is a question of physical power.
Should the rebels prevail and establish their independence, such
a result would not vindicate the doctrine of secession, but it
would be the establishment of secession in fact. Would it not,
in that event, be ridiculous to affirm that because, by the Con-
RECONSTRUCTION IN WAR TIME 211
stitution, there is to every State guaranteed a republican form of
government, therefore those established independent States were
still States of the Union?
For the same reason, it is said that no State can commit sui
cide ; but no sane man believes that a policy of life assurance will
secure immortality to the assured.
Now it seems to me that the principles applicable to the ques
tions of secession, State suicide, and abrogation of State con
stitutions and State governments are simple and easily illus
trated. No State can, without consent, legally withdraw from
the Union; therefore there can be no legal secession. No State
can release her territory and people from the claims and injunc
tions of the Federal Constitution until she shall have established
her independence by force of arms; so in that sense no State is
out of the Union. When a State, by the consent and active par
ticipation of her officers and people, has repudiated and fore
sworn the Federal authority and joined an antagonistic con
federacy, she is no longer a State in the Union ; but her territory
and people, until she shall have established her enfranchisement,
will remain within the jurisdiction of the United States and
amenable to Federal authority. If she succeeds, whatever may
be the guaranties of the organic law, her whole territory is out
of the Union. By the action of the people and the State authori
ties in making war upon the United States and forming a foreign
alliance, the State, or the government, if you like the term better,
is out of existence. Certainly you do not recognize the rebel
authorities, and there is no other in those States; so it follows
that there is no government in the seceded district that can be
recognized under the Federal Constitution. As here used, I
regard the terms State and government as synonymous, because
I cannot conceive of a State, in the sense used, as applicable to
our political system, without some kind of governmental organ
ization.
Now, I repeat that the Constitution does not guarantee that
every State shall maintain a State government. The Federal
Government has pledged its faith that no State of the Union
shall be forced or even permitted to have a monarchical govern
ment, and that it will render all needful aid to enable the people
to sustain one republican in form; but if they will not have it
you cannot exercise the functions of State government for them.
Such is the present condition of the rebellious districts. They
had State governments under the Constitution and within the
Union, but they tore them into pieces and cast away the frag
ments. But amid the traitors, surrounded by the ruins of those
212 GREAT AMERICAN DEBATES
fallen governments, are true patriots and loyal men. They are
citizens of our common country, and entitled to all the benefits
guaranteed by the Federal Constitution. They had not votes and
arms sufficient to resist the traitors. You have strength to crush
out rebellion, but you cannot vote nor elect officers for them.
But you can give them temporary government, republican in
form, such as is now enjoyed by hundreds of thousands of
American citizens without the limits of State organizations ; and
adopt prompt and efficient measures for an early restoration to
their former rights and privileges. Such, I understand, is the
purpose of the bill.
The resolution was referred to a special committee,
a majority of whom reported, on April 19, a bill with
the following provisions :
1. Appointment of provisional governors for the seceded
States by the President with the consent of the Senate.
2. When insurrection in any of the States has been sup
pressed the provisional governor shall enroll its white male
citizens, and, when the number of those who take the oath of
allegiance to the Federal Government amounts to one-tenth of
the whole, he shall call a convention of these to establish a State
government.
3. The number of delegates to this convention shall be that
of the last constitutional State legislature, appointed by the
provisional governor among the counties. The provisional gov
ernor shall fix and control the election to the convention and
preside over its deliberations.
4. No person who has held office (civil or military) under
the rebel usurpation, or has borne arms against the Federal
Government, shall vote for a delegate or be elected as one, even
though he takes the oath of allegiance.
5. The State government adopted by the convention shall
provide : (a) that no one who has held office under the rebel
usurpation shall vote for State officers or serve as such; (b)
slavery shall be forever prohibited; (c) no debt, State or Con
federate, which has been contracted under the usurping power
shall be recognized or paid.
6. The new constitution shall be submitted to the vote of the
loyal people of the State, and, if it is ratified by them, the
State shall be proclaimed by the President, with the assent of
Congress, as a State on equal terms with those which had not
seceded from the Union.
RECONSTRUCTION IN WAR TIME 213
7. If the convention shall refuse to adopt a constitution
on the conditions provided, the provisional governor shall dis
solve it, and, when he has reason to believe that another con
vention will adopt such a constitution, shall call this for the
purpose of doing so.
8. Until a permanent State organization has been affected
the provisional governor shall execute the Federal laws, and the
laws of the State the year before secession, and shall not recog
nize slavery. To assist him in this the President shall appoint
such State officers as are necessary.
9. The taxes collected under the laws of the States shall
be applied to the State administration, and any surplus shall
be reserved in the Federal treasury to be turned over to the
permanent State government when this is organized.
10. All slaves shall be freed, and persons attempting to
restrain them of their liberty shall be fined and imprisoned.
11. Every person who shall hereafter hold any office, civil
or military, in the rebel service is declared not to be a citizen
of the United States.
James C. Allen [111.] a member of the committee,
spoke against the bill. He said that the method pro
posed was an innovation in our political system and that
the powers conferred were unconstitutional, being in
derogation of the rights of the States and of the people.
If the States were out of the Union, lie asked, when
did they get out, and how did they become foreign
States?
By resisting the authority of the United States with force?
Surely not. They could not thus cut asunder the ligaments that
bound them to the Federal Government and release themselves
from the obligations and duties which they owed to it, unless
this resistance had been carried to a point where the Government
had given its consent to a separation, the point at which all
revolutions become successful. It will not be contended by the
friends of this bill that that point has been reached. Then if
they have not thus hewn their way out of the Union to the posi
tion of foreign States, how else could they get out ? There is but
one other way, and that is by their ordinances of secession. If
they could go out by act of secession without consent of the
Federal Government, then they are foreign States, and their
citizens owe obedience and allegiance to another government,
214 GREAT AMERICAN DEBATES
and the war we have been waging against them is not a war to
vindicate the supremacy of the Constitution and the laws of the
Federal Government, but a war of conquest for the subjugation
of a foreign people. If they became foreign States by the act
of secession, then they had a right to secede. If they had no
right under the Constitution and laws to secede, then their ordi
nances of secession were void, and they are yet States in the
Union, and the allegiance and obedience of their .citizens are due
to the Federal Government, in all that the Federal Government
has a right to demand.
But these States were not regarded by the Government as
out of the Union. The President and Congress did not so regard
them. The people, when they rallied under the call for troops,
rallied under a belief that the war was a war to maintain the
Union, to vindicate the supremacy of the laws over men and
States in rebellion against rightful authority. It is true we
treat their citizens, when captured with arms in their hands, as
prisoners of war, entitled to the rights that pertain to bellig
erents under the usages of war ; but we do this, not because we
regard them as citizens or soldiers of a foreign government, but
because humanity and the interest of our own soldiers captured
by them require that we should thus treat them.
This bill is based upon the supposition that the time will come
when these people will be willing to return to allegiance and
duty. But it contains provisions which destroy the equality of
these States and curtail the rights of their citizens. I know
gentlemen are ready to answer that these people have forfeited
the protection which the Constitution gives to the law-abiding
citizen and have no right to claim the protection of the Consti
tution. I answer, they have rendered themselves amenable to
the penalties prescribed by the Constitution and laws by their
rebellion, and it will remain with the Government to say how
far these penalties may be inflicted upon them when again
brought within their reach ; but you can only inflict penalties on
individuals. You cannot, and ought not if you could, to fix the
badge of inequality upon the States, for I assume if these States
are not entitled to equality of right in the sisterhood of States
then they ought not to be in the sisterhood. This is the theory of
our Constitution, and has ever been the practice of the Govern
ment. No plan for the reorganization of these States will be
successful that does not keep this fact in view. Their reorganiza
tion on any other basis will be effected only by force, and their
people will yield only such obedience to the Government as is
exacted by force.
RECONSTRUCTION IN WAR TIME 215
The President's plan, as set forth in his amnesty proclama
tion of December last, is subject to the same objection. The
House will pardon me if for a moment I wander from my argu
ment upon this bill to pay a passing notice to that proclamation,
although it may be deemed a work of supererogation to discuss
a document of such unlimited pretension that has so soon fallen
into such general contempt. In regard to it, I agree with much
that was said by the gentleman from Maryland [Mr. Davis],
that it is not worth the paper upon which it is written ; that the
President possessed no constitutional power to enforce it; that
it is a dead letter except in the presence of the army. That it
was intended to increase the President's power on the floor of
the House and of the Senate, and more particularly in the elec
toral college, are facts too palpable to be successfully contro
verted. I need not say that the powers assumed in the procla
mation are not only dangerous to civil liberty, but that their
exercise is military usurpation. If he can in time of war sus
pend one portion of the Constitution under the pretext of mili
tary necessity, he can suspend the whole instrument, and make
his power not only absolute, but perpetual ; he can suspend that
provision of the Constitution which authorizes the people to
elect his successor in November next, and install him into office
on the 4th of March following; he can issue his mandate and
disperse the two Houses of Congress ; he can send his posse into
your court-rooms and drive the judges from the bench. All
these things he can do if he has power to dictate to a State what
its State constitution shall or shall not contain. What power
the President possesses, either in peace or in war, he derives
from the Constitution. Whatever powers he exercises must be
exercised in pursuance of its warrant, and when he steps beyond
the power conferred by that instrument he becomes to that ex
tent a usurper.
This bill in some respects is an improvement upon the Presi
dent 's plan of reconstruction. It preserves the geographical
boundaries of the States, and would prevent the division of one
of these States into two or more States. It also in a subsequent
section provides that Congress shall determine when they have
sufficiently reformed their State governments as to entitle them
to a representation upon this floor and in the Senate. It vindi
cates, to this extent, the dignity and power of Congress over
these questions, but at the same time it is obnoxious to serious
objections, some of which are embraced in the President's plan.
One of the most prominent is that it carries out a feature in the
President's plan which enables one-tenth of the citizens to make
216 GREAT AMERICAN DEBATES
constitutions and laws for the government of the other nine-
tenths.
The President would have created a sort of order of nobility,
the patent whereof he proposed to bestow, not for eminent ser
vice to the State or upon the field, or for valuable discoveries,
which is usual in governments where these orders are created,
but on account of their sycophancy, in taking an oath to sup
port and maintain the President's proclamations as coming
within his prerogative and power. This bill proposes to confer
the same dignity upon one-tenth, but for a different reason;
but it is no less objectionable in principle.
This bill is based upon the idea that these are yet States in
the Union with the State governments usurped or overthrown.
What, then, is necessary to be done to restore rightful rule
within their limits? They have the same constitutions and the
same laws they had before the rebellion; they have not been
abrogated nor changed; no attempt has been made to change
them in any very important particular except in the change of
the form of oath which officers of State should take when they
are required to take an oath to support the constitution of the
Confederacy instead of the oath to support the Constitution of
the United States. Their constitutions in this respect are not
really changed. Having no power to secede, not being out of
the Union, the change in this regard is void and has no effect ;
so with whatever legislation has been had in contravention of
the Constitution of the United States, it being the supreme law
of the land operating there as elsewhere. What, then, is needed ?
Not constitution and laws; they have them already. But their
offices, executive, ministerial, judicial, and legislative, have been
usurped and their functions performed by men who refused to
acknowledge their obligations to the Federal Government, and
who have been sustained in this refusal by military force. What
is needed, then are new incumbents in these offices, men who will
acknowledge the authority of the Federal Government and pay
respect and obedience to its laws. They require a reform in the
administration of their State governments already existing.
When this reform is wrought all conflict between the Federal
Government and the State governments will cease.
These States do not, nor will they, occupy toward the general
Government the relation of Territories. Hence no authority can
be found to authorize this legislation in those provisions of the
Constitution relating to Territories. Nor will they occupy the
relation to the Government that conquered provinces occupy
to the government making the conquest. Usually the laws of
RECONSTRUCTION IN WAR TIME 217
the conquered are so different, so antagonistic to the laws of the
conqueror as to require radical change to adapt them to their
new relation. But such is not the case in these States. Their
constitutions and their laws are such as have always been recog
nized by the Federal Government as republican in form and
consonant with the principles of our Constitution. Hence the
power to enforce upon these people the provisions of this bill
must be found in some other provision of that instrument. The
gentleman from Maryland [Mr. Davis] contends that he dis
covers the power in section four, article four, of the Constitu
tion, which reads as follows :
"The United States shall guarantee to every\ State in the
Union a republican form of government."
That provision cannot apply to States already having con
stitutions and laws republican in form.
Now, one who guarantees the performance of a contract is
not the one who undertakes to perform its stipulations. So,
when Congress is required to guarantee republican forms of
government to the States, it requires only that Congress shall
see that the States enjoy such a form of government, and pro
tect them in its enjoyment.
Mr. Allen further objected to the bill as anti-repub
lican, because it imposed State governments upon the
people of the States without leaving them a really free
choice in the matter.
The bill not only undertakes to direct what shall be in their
constitutions on certain subjects, but it determines also who
shall and who shall not enjoy the elective franchise and be
eligible to office. This power not having been conferred by the
Constitution upon Congress, belongs exclusively to the State.
If any one controverts this position I would refer him to the
first article, second section, of the Constitution, where, in pro
viding for the election of Representatives to Congress, we read
that "the electors in the several States shall have the qualifica
tions requisite for electors to the most numerous branch of the
State legislature," leaving the conclusion irresistible that it is
to the State belongs the power of determining this question.
The bill is obnoxious to the further objection that it gives to
the President of the United States the power, through his mili
tary governors and his provost marshals, to mold the Constitu
tion and laws to suit himself on questions where Congress does
not intervene, and between what power Congress exercises, and
what the President, through his military, would exercise, the
218 GREAT AMERICAN DEBATES
people would have none left. These questions should be left to
the people as they are left in other States, without the interven
tion of Congress or the Executive.
I confess, sir, that in my view it is a very grave offence to
resist, by force of arms, the authority of the Government. But
is it such an offence as requires Congress, in violation of con
stitutional right, to step in and take away from the offender the
elective franchise? If so, I fear that some, who, in the modern
acceptation of the term, are extremely loyal, would suffer from
such a law. Some in Massachusetts, in Ohio, and in my own
State have been guilty, in times past, of resisting the authorities
of the United States in enforcing the Fugitive Slave law.
If the people are not capable of making constitutions and
laws for themselves, then our form of free Government is a
failure, and let us say so, and take the necessary steps to change
it. But do not, under the forms of a republic and under the
constitution of a republic, play the dictator. Let us not, under
the pretext of giving to the States a republican Government,
force upon them one in which the main features of a republic
are swallowed up in congressional dictation.
Again, this bill requires that the constitution which the
State shall adopt shall contain a provision "that no debt, State
or confederate, created by or under the sanction of the usurping
power shall be recognized or paid by the State." That is also
a question that ought to be left to the State to determine. There
were many men in those States when the rebellion first broke out
who had their property taken by the usurping State authorities
under a promise to pay for it, men who were then, and are yet,
true to the Union, but who were left without any protection
from the Federal Government, who were left to the mercy of the
usurping power; and for Congress to compel the State to re
pudiate such an obligation and leave one whom the Government
did not, and could not, protect to beggary and want would, in
my judgment, be to commit an injustice for which there can be
no excuse. Let the State, in the exercise of a wise discretion,
determine what ought to be paid and what ought to be rejected.
The burden of such payments will fall upon the people of the
States if they see fit to assume them. Let us not in a mere
wanton exercise of power do that which will appear unjust in
the eyes of the world. We can trust them on that question if
we can trust them with the management of a State government.
But there is another provision by which Congress assumes to
exercise a power which does not belong to it. I allude to the
provision which requires these State to incorporate into their
RECONSTRUCTION IN WAR TIME 219
constitutions a clause prohibiting involuntary servitude. There
are three provisions in this section that Congress declares shall
be in their State constitutions ; provisions over which the people
of the State to be affected by them are to have no control ; ques
tions reserved to the States by the Constitution ; questions which
Congress cannot determine for them without exceeding its au
thority, and without violating the principles of republican gov
ernment.
The bill contains other provisions not within the power of
Congress. One abolishes slavery in these States as far as an act
of Congress can abolish it. It not only abolishes it, but it takes
away from the courts, as far as an act of Congress can take
away, the power of passing upon the right of Congress to abolish
it. It declares that, if any one declared free by this act shall
be held under pretence of claim to service or labor, the courts,
upon habeas corpus, shall discharge such a one.
Another provision attempts to give legal effect to the Presi
dent's proclamation by prescribing the punishment of those who
shall attempt to restrain the liberty of any one declared free by
that proclamation.
In these two sections, as well as in section seven, the advo
cates of this bill ' ' overleap ' ' all constitutional barriers and press
on to the accomplishment of their purposes, in contempt of the
rights of the States and of the people, sowing broadcast, as they
go, the seeds of distrust and revolution, fulfilling the prediction
that when they obtained the power they would trample under
foot and dishonor the Constitution. If this House have de
termined to pass this bill, I have no reason to suppose that
anything I can say will be heard; since to its advocates the
freedom of what slaves are left is of more moment than the Con
stitution, which secures the civil liberty of our own race.
But gentlemen say we must bury slavery out of our sight.
If the people desire it buried let it be done, but let its funeral
be conducted according to the covenants of the Constitution.
Let us not break the faith pledged by the fathers. Let us not
forget that by a faithful and strict compliance with our obliga
tions in giving to each State and each individual that which be
longs to them, under the Constitution, we vindicate the law and
increase our own security, and that by violating its provisions
we ourselves become revolutionists.
Let us not, in our effort to destroy slavery if it be alive or to
bury it if it be dead, destroy the fundamental law of our Gov
ernment, and leave our own race a prey to anarchy or despotism.
Some one suggested that when slavery was buried upon its tomb-
220 GREAT AMERICAN DEBATES
stone should be written, "Slavery — died of the rebellion." I
warn gentlemen to beware, lest beside the grave of slavery be
found another grave and another tombstone, whereon history
will write, "Civil liberty — died of revolution."
Nathaniel B. Smithers [Del.], a member of the com
mittee, supported the bill.
In a nation allegiance and protection are correlative. There
fore the loyal people of a seceded State are the repositories of
its power and unorganized sovereignty. Providing the pre
liminary arrangements for reorganization must of necessity
begin de novo with the rude elements of an unformed political
society, the first step in the formation of a government based
upon the will of the people is to determine of what persons that
people shall be deemed to consist. By the terms of the bill all
white male citizens are to be enrolled ; but inasmuch as rebels are
citizens of the United States, though arrayed against its author
ity, a test must necessarily be applied to ascertain who, being
loyal, are entitled to participate in framing the organic law.
The bill does not regard any right as pertaining to those ad
hering to the rebellion. They are excluded from all share in
the Government formed under its auspices. The test proposed
is an oath to support the Constitution of the United States. The
persons thus taking the oath must constitute a majority of those
who are enrolled. These persons so enrolled and testifying to
their loyalty are deemed to constitute the people. By their
assent the machinery of government is to be set in motion. On
their consent the Constitution to be ordained is to rest, not only
in the origin of the convention, but in its ratification by their
express will.
How, then, can it be pretended that the Government is not
based upon the consent of the governed ? Is it because persons
are excluded who refuse to qualify themselves by taking the
oath of allegiance? Surely it can be no deprivation of any po
litical right to declare that he who renounces obedience to the
Government shall not have the privilege to determine concerning
the form of State government to be established.
I deny that a rebel has any political rights. I deny that in
any legitimate sense he is or ought to be held as one of the
people authorized to form or administer government. That he
is not recognized by this bill as entitled to citizenship is the
result of his own refusal to acknowledge allegiance to the United
States.
RECONSTRUCTION IN WAR TIME 221
But it may also be alleged, Mr. Speaker, that the bill is ob
jectionable because it provides that a number less than a ma
jority of those who were formerly citizens of the State may
ordain the constitution.
If this comprises all the loyal people it is difficult to discover
on what principle it can be denounced as anti-republican. If
they are satisfied with the law of restoration, in accordance with
the act of Congress, who has the right to complain? By their
own volition they accept the terms of reorganization, and it ill
behooves those not subject to the laws which they enact for their
own government to deny them the privilege of entering into the
administration of their own domestic affairs.
The proportion to be established by the bill is a matter for
consideration; not with the view of avoiding the charge of a
violation of the principle of republican government, but of as
certaining whether there is a body capable of self-rule and of
maintaining civil administration in the State.
But, Mr. Speaker, we are also met with the objection that
this bill, by the provision of emancipation, interferes with the
rights of the several States within its purview to regulate their
domestic institutions. This is no novel suggestion. It is as old
as the struggle for the adoption of the Constitution. It consti
tuted a material portion of the argument of those who arrayed
themselves against the formation of the National Government.
From that time until now it has been constantly thrust forward
in every discussion involving the right of Congress to adopt
measures requisite for the national advantage. Do we propose
to exercise the power of regulating the currency? We are met
by the dogma of State rights, enlisted in the interest of local
banks. Do we endeavor to exert our authority to regulate com
merce? We are confronted with the same phantom of State
rights, pressed into the service of some municipal corporation.
Do we determine to save the Government, reeling beneath the
blows of a formidable rebellion organized and operated by the
instrumentality of African slavery? We dare not accomplish
its suppression and prevent the contingency of future insurrec
tions for fear we shall invade the hallowed precincts of State
rights.
Mr. Speaker, it is time that there was an end to this delusion.
The danger to this people is not from centralization, but disin
tegration. If indeed there were such antagonism between the
two systems of government [national and State] that one or the
other must perish, it would be for the people to judge which
should be sacrificed: whether that which renders us great and
GREAT AMERICAN DEBATES
powerful and prosperous should give way to the maintenance
of petty municipalities that could secure neither respect abroad
nor concord at home. Should the dread alternative be presented,
I mistake the temper of the people, and their estimation of the
solid and substantial benefits of the Union, if they would not
choose a consolidated and centralized Government rather than
underlie the calamities incident to individual States or miser
able confederacies, the inevitable prey of intestine strife and
foreign domination.
On April 29 Thomas Williams [Pa.] spoke in favor
of Congress reconstructing the governments of the se
ceded States as if they were Territories, and against
military reconstruction by executive power.
These States are either in the Union, or they are not. Some
people may think it makes no practical difference how we con
clude on this point while the war is flagrant. That is not my
judgment. It has seemed to me that all the irresolution, all the
unsteadiness in our counsels, all the doubt and hesitation and
delay, all the apparent obtuseness and obliquity of the moral
sense, and many of the differences between good and loyal men
here, were mainly referable to the fact of the failure to settle this
great question, and settle it correctly, in advance. The war was
inaugurated on the theory that they were in, when the great
fact of war, which individuals cannot wage in the social state,
and peoples do not wage upon themselves, was a proclamation
that they were out. The Democrats of the North were willing
to accept the fact that they were out, without war — to adopt the
principle of the laissez-nous faire — the "let us alone" of the
rebel authorities, and to treat with them upon the idea of a re
construction, upon that kind of compromise which involves gen
erally a traffic in principles, and that sort of mutuality where
all is demand on the one side and concession on the other. They
were willing to waive the right and the treason absolutely, and
declined the alternative of war on the ground that the obligation
was an imperfect one, whose performance depended upon the
mere will of the contracting parties, and could not be enforced.
With them it was peaceful secession, with reconstruction by
treaty. The ruling thought was, of course, to spare, to save, to
do as little harm as possible to those who were not our enemies,
but our brethren — sisters, perhaps, I should say, albeit a little
"wayward," whose anger was to be kissed away. The rebels
were Democrats, whom it would be a sin to kill, and a greater
RECONSTRUCTION IN WAR TIME 223
sin to rob of their sacred property in slaves. Better a hundred
thousand free white Northern youth should die than one negro
slave should be lost to his proprietor, or employed in arms
against him. To carry out this policy we wanted conservative
generals who would be sure to hurt nobody, and saw men made
heroes — by newspaper process, as great men are now made since
that manufacture seems to have passed out of the hands of
Providence — not because they fought, and fought successfully,
but because they would not fight at all.
But the light which was struck out from the collision of hos
tile bayonets, struggling up through the haze in which we were
enveloped, began to dawn slowly upon the country. It was
soon reflected back upon these Chambers, and statesmen began
to feel that they were in the presence of a great fact that could
not be conjured down by empiricism, or reasoned down except
by the logic of artillery.
And now let us inquire for a moment how the public law of
Christendom, as declared in the opinions of the publicists, and
the practice of enlightened nations, squares with the present
proposal.
It will be found, I think, that the most eminent of these
writers are agreed in the opinion that the parties to a civil war,
having no common judge, or common superior on earth, "must
necessarily be considered as constituting, at least for a time,
two separate bodies, two distinct societies," and that "when a
nation becomes divided into two parties absolutely independent,
and no longer acknowledging a common superior, the State is
dissolved, and the war between the two parties stands on the
same ground, in every respect, as a public war between two dif
ferent nations." This is the language of Vattel (pp. 425, 427),
and the learned Barbeyrac, in his notes on the treatise of Gro-
tius, (Book 3, cap. 6, sec. 27), affirms the same doctrine.
It is in direct antagonism therefore to the law which governs
now, as to the facts, to say that these States are still in the
Union as they were before. The theory that this Union was in
dissoluble refers only to the right, to its organic law, and to the
purposes of the men who welded these States together ; but
never was intended to imply that it could not be ruptured by
violence, as it has unquestionably been, leaving to the wronged
and adhering States their remedy for the breach, not by enforc
ing a specific performance, which is impossible, but by the re
covery of the territory which is ours by the contract, and the
expulsion of the delinquents, with the forfeiture of all their
rights in and under the Union, from which they have withdrawn.
224 GREAT AMERICAN DEBATES
To say with a gentleman from Kentucky [William H. Wads-
worth] that this is an admission of the right to secede is to
confound the fact, which is one thing, with the right, which is
another. To assert with the gentleman from Missouri [Francis
P. Blair, Jr.] that this is a concession of their independence,
which would authorize their recognition by foreign powers, is to
forget that we have rights which no violation of the contract
by the other party can destroy. It would be just as sensible to
insist that a judgment of outlawry was a release of the traitor
from his allegiance, and authorized the government to which he
fled to espouse his quarrel and adopt him as its citizen.
Upon this question of the forfeiture of political rights some
further light may be borrowed from the practice of nations in
the application of the jus postliminii, which refers, according to
Grotius and Bynkershoek, as well to cases of territorial recap
ture where a whole community is involved as to those where the
goods of a subject once seized as prize of war are afterward
retaken from the hands of the captors. Here it will be found that
even the provinces of a confederation which have been wrested
from it by an enemy have not always been reinstated in their
original privilege, as reason would seem to adjudge that they
ought to be.
The speaker here instanced refusals of the States
General of Holland to readmit into the Union provinces
which had been wrested therefrom by the Spaniards and
reorganized by the Dutch.
These, however, were cases of seizure and occupation by an
enemy ; ours, of a voluntary abdication of Federal rights and an
organized resistance by governmental action to the Federal law.
There is no case here, therefore, for the application of the law
of postliminy. Some of these States, on the contrary, con
structed out of Territories purchased by this Government, were
lifted from the posture of subject and dependent provinces upon
the platform of the Union, on the condition of obedience to its
laws, and by their voluntary abdication of the privileges so con
ferred have, as it seems to me, by an inevitable logic, lapsed
back again into the territorial condition. Where they have been
recaptured the local governors have fled, the local organizations
have been dissolved, and their territories are now under military
occupation by the armies of the Union, or under provisional
governors appointed by the Executive. This fact alone, as it
seems to me, involves the admission that they are no longer in
RECONSTRUCTION IN WAR TIME 225
the Union. If they are, that occupation is unlawful. If their
governments are dissolved, however, 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. It is not
certainly the military power that is to reorganize, and modify,
and breathe new life into their defunct constitutions. Until
the end of subjugation is achieved and the resistance entirely
overcome, so as to give place safely to the reestablishment of the
civil authority, a military occupation is indispensable, of course.
When that period arrives the sword must be sheathed, and the
Territory return to the direction of the law-making power,
which will prescribe the rule for its government, and allow to
its people the privilege of reorganizing under republican forms.
I call it Territory and invoke the law that governs there, be
cause I know of no intermediate condition. 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 citi
zens — with power to send delegates to Congress with representa
tion 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.
Here is the dilemma. To come back into the Union a State must
either be born anew or come back with all its right 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 origi
nal title.
When I suggest, however, that these States are out, it is with
this important qualification, that they are out in point of fact,
with a forfeiture of all their franchises as members thereof,
whenever the issue of battle shall have been decided against
them; but subjects of it still — members, if you choose — in legal
contemplation, so far as regards their obligations and duties
under the Constitution, and our right to visit them with punish-
men for the delinquency, proportioned to the magnitude of their
VII— 15
226 GREAT AMERICAN DEBATES
offence. They are in for correction, but not for heirship; just
like the unnatural child who has attempted the crime of parri
cide, and only succeeded in dyeing his murderous hands in the
blood of his loyal brethren. It is bad logic to infer that because
they are out without our consent, and have forfeited their rights
thereby, that fact must be attended with a like forfeiture of our
own. Nor would I, as already intimated, be understood as ad
mitting that they are out as to foreign powers, who must respect
our title, although our possession may be ousted, and treat the
contest in all respects as a domestic one. No American of the
right spirit would allow even a question of this sort to enter into
our diplomatic correspondence with foreign powers, or consent
to compromise our dignity and self-respect, which are at last the
best security of nations, by uncovering the maternal bosom to
the rude and insulting gaze of the stranger, and inviting his
interference, either by misrepresenting the aims of our loyal
citizens, or beseechingly deprecating his displeasure. I trust
that our just pride as a people will not be again wounded by the
production of another book like the diplomatic confessions of
1862.
It is suggested, however, by a gentleman from New York,
on the other side of the House [Fernando Wood] that while
we on this side are claiming to be for the Union, the enunciation
of these doctrines by my able colleague [Thaddeus Stevens]
amounts to a declaration that we are no longer a Union party.
The meaning of this, if it means anything, is, that because the
rebel States are out, without any agency of ours, but with a
large share of the responsibility on the heads of those who, like
the gentleman himself, encouraged the defection by their ser
vility or by the assurance that they were opposed to coercion —
as they oppose it now — and taught them to believe that they
could go out with perfect impunity, and that New York and
Pennsylvania would go out along with them — the mere state
ment of the fact that they were out is evidence that the party of
the Administration on this floor is not in favor of the preserva
tion of the Union ! Well, we are in favor, at all events, of pre
serving all that is left of it, 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 un
fitted it for freedom. But what does the honorable gentleman
himself, what do those who vote with him really think on this
subject? Does he, do they believe that the rebel States are not
out? If he does not look upon them as a new and independent
power in the commonwealth of nations why does he propose to
RECONSTRUCTION IN WAR TIME 227
treat with them, not with the revolting States singly, but with
"the authorities at Richmond"? How is it that in his own
resolution he proposes, in totidem verbis, the "offer to the in
surgents of an opportunity to return to the Union"? Who are
the "authorities at Richmond"? Will he inform us whether
they are a people known to our Constitution, or how these States
are to return to the Union if they were never out of it? He
stands, self-condemned by his own logic, as no Union man. I
will allow him, however, the advantage of the admission that it
is but a slipshod logic that cannot distinguish between the law
and the fact. But that is true of himself and his party which
he unjustly charges upon my colleague. The difference is just
this, that, although the rebels have spurned and spit upon their
Northern auxiliaries, rejected all their overtures, and declared
that they will no longer associate with them upon any terms, and
are not willing that they should even come "betwixt the wind
and their nobility," he wishes to treat for the privilege of serv
ing them, while we propose to fight for the purpose of chastising
them into submission. This may be the result only of a differ
ence of taste; but all history attests that there always are, as
there always will be, men who love to wear the livery of a
master, and are uncomfortable without it ; who regard the collar
as a badge of distinction, and would, at all events, rather carry
it than quarrel with it. No wonder, therefore, at the opinion
so often expressed by men of this sort in relation to the black
man, that he would neither run away, nor bear arms against his
master or anybody else. They did him injustice in supposing
that he was like themselves. Pompey, who was an involuntary
slave, is tending toward the north star with a musket in his hand,
while his whole non-combatant substitute, a voluntary slave, is
rushing southward with the olive-branch in his hand, into the
patriarchal arms.
The objection rests, however, as I suppose, upon the remark
that our right to deal with the rebel States after they shall have
been reduced to submission by force of arms is not a question
under the Constitution, but outside of it. I desire to say, once
for all, that I do not concur in this opinion, because I find the
war power in the Constitution with all its incidental conse
quences. If it is not there, the case is without remedy.
The doctrine of my colleague [Mr. Stevens], that these
States are out of the Union, may seem at first blush extreme,
but it is none the less palatable to me on that account.
War is a radical disease, and radical diseases are to be treated
only by radical means. One earnest and decided man is
228 GREAT AMERICAN DEBATES
worth, in times like these, a regiment of temporizers. Timid
counsels have ruined many a state; they have never saved one,
and never will. It may be a paradox, but if conservatism has
ever operated to save a nation in such a crisis as ours, it has only
been, as here, by acting as the dead-weight upon the plowshare,
which has retarded its progress, but made it run so deep into the
virgin soil as to make its work a radical one.
If these States are in the Union, with all their rights and
privileges unimpaired, they may return to-morrow, even without
submission, after being conquered in the field, to conquer their
conquerors in the councils of the nation. The most accomplished
of the Roman poets remarks that ''conquered Greece subdued
her barbarian conqueror, and introduced the arts into unpolished
Latium." The contrary will be the case here. The barbarian
will come back into your halls. The Northern Democrat will
rush into his arms. The two elements, like kindred drops, by an
attraction a good deal stronger than that of miscegenation, will
melt incontinently into one. The old bargain will be renewed —
"Give us the spoils, and you may take the honors and the
power." The proclamation of freedom will be revoked; your
acts of Congress repealed ; your debt repudiated unless you will
assume theirs ; and yourselves, perhaps, ejected from these halls.
And the effect will be that, for all your great expenditures and
all your bloody sacrifices, you will have won back, not peace, but
a master — the "old master," in negro phraseology — who gov
erned you before — as turbulent, as vindictive, and as ferocious
as ever.
Bring them back, and you cannot even bind them by grati
tude, or purge them by oaths, of which they make no account,
as the whole history of the rebellion, which began in perjury,
abundantly shows — which are like the ribbons that were insult
ingly stretched by the Parisian mob in front of the Tuileries td
protect the ill-fated king and queen of France — and which grave
Senators have so recently denied your power to prescribe. The
President has dealt kindly with the neutrals. Has he propitiated
any of them ? Our predecessors here have followed the example.
Look at the facts attending our organization, and say whether
even confidence and charity are followed by either gratitude or
loyalty. No, you must throw the dissevered fragments, the
"disjecta membra" of this great Government, into a caldron,
with a hot fire beneath, and you may evaporate the virus, but
not otherwise.
Taking them, however, to be out, or that the case has passed
from under the municipal into the domain of public law, what is
RECONSTRUCTION IN WAR TIME 229
the authority which that law gives us over the rights and prop
erty of an enemy ?
On this point Bynkershoek says that "if we take for our
guide nature, that great teacher of the law of nations, we shall
find that anything is lawful against an enemy" (p. 2) ; and,
further, that a nation that has injured another is considered,
with everything that belongs to it, as being confiscated to the
nation that receives the injury (p. 4) ; and also that, "if we fol
low the strict law of war, even immovables may be sold and
their proceeds lodged in the public treasury, as is done with
movables, though throughout almost all Europe immovables are
only registered, that the treasury may receive during the war
their rents and profits, and, at the termination of the war, the
immovables themselves are by treaty restored to their former
owners." The same doctrine is laid down by Wildmon (Vol. 2,
p. 9) ; and in the case of Brown vs. The United States (8 Cranch,
110), the broad principle was assumed that war gave the sov
ereign full right to take the property of the enemy wherever
found, and that the mitigations of this rigid rule, which the wise
and humane policy of modern times has brought into practice,
may more or less affect the exercise of the right, but cannot im
pair the right itself. By the law of nature and of nations the
treatment of the conquered depends on the particular circum
stances of the case ; everything is lawful ; everything belonging
to the offending party is confiscated ; the practice of nations has
authorized the forfeiture even of the real estate of individuals;
the conqueror may lay burdens on the conquered, not only by
way of compensation, but of punishment ; he may deprive them
of their rights, and owes them no more than what humanity and
equity require; he may indemnify himself for the expense and
damages he has sustained; he may render them incapable of
further mischief. Indemnity, security, and punishment are all,
therefore, means of self-defence which may be legitimately used.
I think I may safely say that human history presents no
parallel to this rebellion. Since the revolt of the rebel angels
there has been no example of an insurrection so wanton, so
wicked, so utterly causeless, and so indescribably ferocious and
demoniac as the present. It was a rebellion against the majority
rule for the purpose not of reforming, but of overthrowing the
Government, and erecting upon its ruins another of an oligarchic
cast, whose corner-stone was property in man. It was the
product of a system which threw all the lands of the South into
the hands of a few men. It involved an act of aggravated
treason against a humane, paternal, and unoffending Govern-
230 GREAT AMERICAN DEBATES
ment. It has been conducted with a degree of inhumanity that
has no example except in barbarian wars. It has involved to us
an enormous expenditure of money and of blood. Its suppres
sion has become impossible without removing the cause of strife,
and disabling our enemy by liberating his slaves, and arming
them against him. It cannot be repaired. There is no repara
tion possible that would be commensurate with the injury. Can
you breathe new life into the bones that ornament the necks and
fingers of Southern dames, or bleach unburied, without even the
humble privilege of a grave, on Southern battlefields ? Can you
reclothe them with the comely vesture that has been given to the
vultures of the Southern skies ? Who shall restore the shattered
limb ; who fill the vacant chair at the family fireside ; who give
back the husband and the father, or dry the tears of the widow
and the orphan ? What trump, but that of the dread archangel,
who gathers the tribes of the earth for the last solemn judg
ment, shall awaken the gallant dead who sleep in bloody gar
ments, in their beds of glory, from their deep repose ? Mock not
the grief that is unutterable by the suggestion of indemnity or
reparation! "Give me back my legions!" was the passionate
exclamation of the Roman Augustus, when a swift messenger
brought to him the tidings of the slaughter of Varus and his
brave companions in the forests of Germany. "Give me back
my children ! " is the wailing cry that will burst from the bosom
of the Northern mother, who weeps like Rachel for her first
born — or mock me not with the idea of reparation. There is no
reparation for it, as 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, and the complete exorcism of the hell-born and hell-
deserving spirit that has wrought all this world-wide ruin.
Gentlemen object that to seize the inheritance would be to
visit the sins of the guilty upon the innocent. They plead for
the wife whose counsels have driven the husband into rebellion.
They weep crocodile tears for the offspring who have been taught
to spit upon the flag of their country. The widow and the chil
dren of those, however, who have fallen in the effort to suppress
this unholy rebellion have no share in their sympathies. The
chances of war may strip them of their inheritance, but that
makes no difference with them. They take no account of the
fact that nature and Providence have alike decreed that the sins
of the fathers, and even their misfortunes, shall be visited upon
their children, and that the law which authorizes the sale of the
estate for the debts of the former has everywhere affirmed its
RECONSTRUCTION IN WAR TIME 231
justice. The felon-brood may run its plowshare over the bones
of the loyal martyr, while his children are perhaps eating the
bread of charity in their Northern homes, and it is all right,
because the former are the salt of the earth, and a just punish
ment would only exasperate them into a new rebellion. Let them
rebel. A just poverty will render their efforts harmless, and,
by teaching them the value and respectability of labor, make
them only wiser and better men. With my consent they shall
never trample upon the relics of a Northern soldier. I would
carve out inheritances for his children upon the soil that his
sword has ransomed, and his blood baptized and fertilized.
God's justice demands it, and the heart and conscience of the
American people will say Amen.
M. Eussell Thayer [Pa.] spoke less vindictively than
his colleague. He demanded the reconstruction of the
seceded States: (1) guaranties of " unconditional and
perpetual loyalty to the Government and subordination
to its power"; (2) extirpation forever of slavery; and
(3) compulsory repudiation of the rebel debt.
I for one am willing to extend to the people of those States,
upon their returning to their allegiance, every benefit and of
restoring to them every right which is consistent with the per
manent reestablishment of the authority of the United States.
It is our duty to make the path to this object as easy as possible.
Any such path, containing the necessary conditions for this pur
pose, will to most of them appear at first rugged and humiliat
ing. This is the necessary result of their failure to overthrow
the Government of the United States. It is 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 pur
pose prudence requires that all who have held office under the
pretended rebel government should be excluded from these priv
ileges. It does not, however, appear to me to be necessary to
exclude all who have held office under the State governments.
The chief officers of those governments, such as governors and
other high officers, all of whom have been chief actors in the
rebellion and have promoted it by every means in their power,
should be excluded; but I do not believe that either necessity
or sound policy requires the exclusion of the large number of
ministerial subordinates who have participated in the adminis-
232 GREAT AMERICAN DEBATES
tration of local affairs, who have not been leaders of the rebel
lion, and who are willing to return to their allegiance to the
United States.
To all other classes of the free male white population of these
States I would confidently surrender the privileges of the elective
franchise and the same rights of citizenship which we ourselves
enjoy, upon their laying down their arms and returning to their
true allegiance. Nothing, I believe, could be further from the
wishes of the people of the United States than to deprive the
masses of the Southern people, who are willing to return to
their allegiance to the Government of their fathers, of one soli
tary right which they themselves enjoy.
The compulsory repudiation of the rebel debt is a just and
merited punishment to be inflicted upon those who have lent
substantial aid to the rebellion; and it has the further merit
that it reaches with its retributive justice those foreign specu
lators in our sufferings who, at a safe distance, have wickedly
connived at, encouraged, and aided in the attempt to break in
pieces our nationality, and to destroy our free institutions. I
would not, however, in doing this, unsettle any State debt which
may have been contracted for the purpose only of carrying on
the civil affairs of the State, and which had not for its object
the prosecution of the war or the strengthening of the pretended
confederacy.
That slavery must, as a necessary consequence of this war,
forever disappear from the American Republic I believe to be a
conclusion long since reached by a large majority of the loyal
people of the United States. So far as relates to the border
States, which have nobly stood by their allegiance to the Na
tional Government, I am not in favor of any interference with
it, because under our present Constitution we have no such right
of interference, and honor and duty alike require that we should
refrain from such interference. I am in favor of leaving to the
people of those States the entire control and management of this
question. I fully believe that they will find it for their interest
and welfare at no great distance of time to make their institu
tions in this respect correspond with those of the free States.
The recent action of the people of Maryland upon this subject,
by which, on the 6th day of April, they declared themselves by
a large majority in favor of immediate emancipation, and thus
forever destroyed the political significance of Mason and Dixon 's
line, gives assurance, I believe, of what will be the ultimate ac
tion of the people of all the border States in reference to this
matter.
RECONSTRUCTION IN WAR TIME 233
Thaddeus Stevens [Pa.] upheld his theory that the
seceded States were de facto out of the Union, and re
plied to those (especially Francis P. Blair, Jr.) who had
denounced him as a " secessionist. "
Gentlemen deny that the rebel States, so far as they are con
cerned, are out of the Union. It follows that, being in the
Union, they have all the rights of other States. If they have
such rights and should come here at the next presidential elec
tion and claim them, where does such doctrine lead you to ? It
leads you into subjection to traitors and their Northern allies.
If they are in the Union, where are their representatives on this
floor ? Every one of the United States is entitled to have mem
bers here and Senators in the other branch. Where are these
evidences of existing States ? They are at Richmond, where the
Congress of the Union does not sit.
But it is said that the Constitution does not allow them to go
out of the Union. That is true, and in going out they com
mitted a crime for which we are now punishing them with fire
and sword. What are we making war upon them for? For
seceding, for going out of the Union against law. The law for
bids a man to rob or murder, and yet robbery and murder exist
de facto but not de jure.
The gentleman from Missouri says that those who declare
the States outlawed to the Union preach the doctrine of seces
sion as much as Jeff. Davis. Does the man who declares that
murder or larceny exists give countenance to those felonies'?
The one is as reasonable a deduction as the other. If the fiction
sometimes used in courts of equity that whatever ought to be
shall be considered as existing be true in fact, then the rebel
States are in the Union. If the naked facts palpable to every
eye, attested by many a bloody battlefield, and recorded by every
day's hostile legislation both in Washington and Richmond, are
to prevail, then the rebellious States are no more in the Union,
in fact, than the loyal States are in the Confederate States. Nor
should they ever be treated so until they repent and are rebap-
tized into the National Union.
The gentleman from Missouri, fatally bent on mischief, anx
ious to distract and destroy the Republican party, and to alienate
the President from his true friends, that he and his household
may reign supreme, speaks of our attempts to sacrifice the whites
to the blacks, to introduce amalgamation of the races, and to
create negro equality. When the gentleman thus accuses the
Republican party he knows that he utters a foul and malignant
234 GREAT AMERICAN DEBATES
libel. The Republican party never held such doctrines, never
uttered such a wish. I rejoice that in the vote which was taken
soon after his speech not a man was found with him who ever
belonged to the Republican party. He only was found voting
with the hereditary enemies of the Administration. That was
right. "He went to his place/'
The gentleman speaks of my remarks as an "entanglement
of contradiction" and " a catalogue of inconsistencies." As this
touches only my capacity for argument, I take no offence at it.
The gentleman cannot think more humbly of my abilities than
T do myself. When he comes to speak of motives, however, it is
a different thing. To show the temper which animated him I
will give a few extracts from his carefully prepared speech.
He says:
"No gentleman, either North or South, ever asserted the secession
cause so boldly in the forum as the gentleman from Pennsylvania. It looks
like an attempt to play into the hands of some rival candidate for the
presidency, who would array a party against the President to drive him
to surrender his convictions and break his oath to support the Constitution.
I am apprehensive that the gentleman is anxious to saddle the President
with the odium of doctrines which are known to be those of rival aspirants
for the presidency. ' '
The gentleman says that the Republicans do not agree with
the President on the question of colonization ; that he is for the
segregation of the races, while we are for leaving them on the
soil to cultivate it for wages. In that he is probably correct.
There is a difference of opinion among the friends of freedom on
that question. But that does not imply hostility to each other.
It is a question on which men may honestly differ. I have never
favored colonization except as a means of introducing civiliza
tion into Africa. Its effect upon slavery was injurious. It was
a salve to the consciences of slaveholders and their advocates.
As a means of removing the Africans from the country it was
puerile. All the revenue of the United States would not pay for
the transportation of one half their annual increase. The
scheme of colonizing them in South America (which, I believe,
was the gentleman's plan) was a very shallow vision. They
were averse to removing from their native land; their forcible
expatriation would be as atrocious a crime as stealing them in
Africa and reducing them to bondage. Five hundred were
lately seduced to go to an island near St. Domingo. Such as
have not died in six months have been brought back at our ex
pense. I hope this will be the last of the unwise and cruel
RECONSTRUCTION IN WAR TIME 235
schemes of colonization which were fostered and procured by
the gentleman's advice.
As to rival candidates for the presidency I know of none
such. I do not believe that the present discreet Executive has
made any movement or expressed any wish for reelection. I
think the same of all the members of the Cabinet. I suppose that
no man, whether in or out of the Cabinet, would oppose his wish
to the will of the people if they should call upon him to serve.
But his appetite for office must be morbid who would covet the
presidential chair in these troublesome times unless he believed
he could render essential service to the nation.
The charge that these principles are invented to serve a
presidential candidate is absurd. I held and promulgated pre
cisely the same doctrine in 1861 when there was no thought of
the presidential election. I believe now among the people there
is entire unanimity. Every man, except the friends of the great
Cunctator [Gen. McClellan], believes Mr. Lincoln to be an hon
est and patriotic man, and, so far as I have observed, looks to
him to end this rebellion and extirpate slavery. I do not believe
he is in any danger of becoming unpopular through his own
acts ; nor do I believe that even the constant boast by the gentle
man from Missouri and his kindred that they are the especial
friends and organs of the President can sink him. If that can
not, certainly nothing else can.
Francis Kernan [Dem.], of New York, spoke against
the bill.
By the provisions of the bill, although the one-tenth or one-
half or all the citizens of one of these States shall cease all re
sistance, submit to the authority of the Constitution and laws of
the United States, and take the oath of allegiance required, they
are not permitted to resume the administration of their State
government under its old constitution, or to be represented in
the Federal Government, or to frame a new constitution for
their State, in accordance with that of the United States, unless
they incorporate in that new constitution certain provisions
which by this bill we dictate to them, and which relate to mat
ters within the exclusive authority of the people of the State.
JAMES M. ASHLEY [O.]. — I desire to say to the gentleman
from New York that so far as the House committee are con
cerned they have determined to make the same requirements
apply to all States alike hereafter to be admitted. Colorado, Ne-
236 GREAT AMERICAN DEBATES
braska, and Nevada are all required to comply with these same
conditions.
MR. KERNAN. — The admission of a State formed out of terri
tory belonging to the United States is not a parallel case. The
States to which the bill under consideration is to apply are
existing States ; the bill recognizes them as such. They are not
to be readmitted to the Union ; they are now in law a part of the
Union. We are carrying on this war to enforce the authority of
the Constitution and laws over them. When resistance ceases,
when the usurped authority of those in rebellion in these States
is overthrown, the constitution and laws of the State which ex
isted when the rebellion arose will be again in force and vigor,
and should be administered by those citizens of the State who
never joined in the rebellion, and those who by amnesty are
relieved from the penalties of treason.
Mr. Speaker, in my judgment this bill is in violation and sub
versive of the fundamental principles upon which both our
national and State Governments are founded.
The powers granted to the Government of the United States
by the Constitution were confined to national purposes and
objects. As to these powers it is sovereign and supreme, and
rightfully commands and can compel the obedience of every
citizen of every State. But it has no right to interfere with the
people of any State in the formation or administration of their
State government. Congress has no right to dictate to a State
what shall be the provisions of its State constitution. When
Congress does so, and the Federal Government attempts to com
pel the people of the States to submit to its decrees in this re
spect, a revolution is attempted in the Government as it was
established under the Constitution. The sole power granted to
the national in reference to State governments is contained in
the clause by which each State is to be guaranteed a republican
form of government. Subject to this provision, or condition,
the right of the people of each State to retain the old or form a
new State constitution and government is absolute.
If Congress may impose upon the people of a State the con
ditions prescribed by this bill as conditions precedent to the
exercise of their right to maintain, form, or administer a State
government, we may require them to ordain as a part of a State
constitution almost any other provision. Congress has no such
power. The Constitution of the United States is based upon pre
existing State governments which the people of the respective
States may maintain or change at pleasure, being only bound
to have them republican in character, subject to the Constitution
RECONSTRUCTION IN WAR TIME 237
and within the Union. This bill is in direct conflict with and
subversive of all these principles and rights. It prohibits the
loyal citizens of a State in which the rebellion has existed from
administering their State government under and in subordina
tion to the United States Constitution and laws after the rebel
lion has been suppressed and all disloyal men expelled from the
exercise of their usurped power. It prohibits the loyal citizens
of the State from reorganizing their State government by the
adoption of a new State constitution and electing their State
officers, except and unless they will incorporate in such consti
tution provisions not required by the Federal Constitution, and
which are prescribed by a majority of the people of other States
acting through their Representatives in Congress. Until they
will do this, no matter how loyal to the Union the majority or all
of them may have become, they are to be governed and con
trolled as to all their State affairs by arbitrary military power
responsible only to the President of the United States. Nay,
until they will comply with the conditions we prescribe they are
not to be allowed Representatives in the Congress of the United
States. They are as absolutely the subjects of despotic power
as were the inhabitants of the Roman provinces who were plun
dered and tyrannized over by military governors like Verres.
And yet this bill is called one "to guarantee to the people of
these States a republican form of government ! ! "
I have supposed we were striving to maintain our old gov
ernments, national and State, in all their beautiful harmony,
and with all their nicely balanced powers and wisely constructed
checks; that this was war prosecuted to preserve these, and
secure the blessings they did in the past, and will in the future,
confer upon us as a people. But if this bill passes and is put in
force, we will have destroyed the system of government trans
mitted to us, and commenced the construction of a consolidated
National Government which will soon extinguish the States and,
I fear, the essential liberties of their people. How long, think
you, will the people of the Northern States bear patiently the
burdens and sacrifices of this destructive war for the accomplish
ment of such a purpose ?
When rebellious citizens have usurped the administration of
the State government, turned its powers against the Federal
Government and compelled the minority of the people to submit
to their usurpation, the duty and the sole authority of the United
States is to overthrow the power of the usurpers and restore the
loyal people, or the people who, under promise of amnesty, sub
mit to the identical State government the protection and ad-
238 GREAT AMERICAN DEBATES
ministration of which they were deprived for a time by the in
surrection or rebellion. But the United States has no authority
or right, when the rebellion is suppressed and all illegal resis
tance overcome, to say, as we do by this bill, to the loyal people
of the State, We will not restore or guarantee to you the repub
lican State government which you had established rightfully,
and which existed when the usurpers deprived you of its ad
ministration, but we will compel you to form another according
to our dictation; and if, as freemen, knowing your rights, you
refuse to comply, we will deprive you of all political rights and
privileges in national or State affairs, and govern you by mili
tary power until you submit.
It seems to me that in pursuing this course, so far from
guaranteeing to them the republican government which they
had rightfully formed for their State, we aid the usurpers and
rebels in overturning the legitimate preexisting State govern
ments, by effectually completing what they began.
We are bound to secure to the people of each State under
such State government as they shall see fit to establish, subject
to the Constitution of the United States, the right to administer
their own affairs, the right to enact and change their own laws
as to all local matters. We have guaranteed that to them, and
we must keep our guarantee, at least to the loyal men. For my
part, I say that we are bound to do it if there are but a hundred
men in the State who have stood by the Union.
It is said that these State governments have been overthrown,
and therefore the general Government has a right to assume this
power. It seems to me that all that can be justly claimed is
that rebellious men, disloyal men, revolutionary men, have seized
upon the machinery of the State government.
I wish to see our armies conquer the rebel armies, and drive
out the usurpers who have been carrying on this rebellion. The
people of these States must be required to submit to all the
United States laws. We must insist that they submit to all the
laws in relation to the revenue, in relation to the currency, the
post office, and all other subjects within the jurisdiction of the
Federal Government. When they do this there is no necessity
that we should, nor in my judgment have we any right to, inter
fere as to their State governments. They have a right to main
tain them as they were when the rebellion commenced, or they
may change them.
Mr. Speaker, I am aware that it is sometimes said here that
the institution of slavery as it exists in these States is inconsis
tent with "republican Government," and that therefore under
RECONSTRUCTION IN WAR TIME 239
the clause of the Constitution above quoted Congress has a right
to compel the people of the States to abolish it.
Sir, I am no admirer or advocate of slavery. I object to it,
believing it to be a great moral and political evil — a wrong to
the slave, and, in the long run, a curse to the master. I shall
rejoice to see it abolished, if it is done without violating the
Constitution of the United States or interfering with the re
served rights of the people of the States to regulate their local
institutions. We should not violate the Constitution of the
United States nor imperil the perpetuity of the Union under it
to interfere with it where it exists in the States. We of the non-
slave-holding States are not responsible for it, nor are we likely
to deal with it wisely for the benefit of the slave or for the peace
of the country.
But it is too plain for argument that the institution of slav
ery as it has existed in the States of the Union is compatible with
a republican Government within the meaning of the United
States Constitution. The States which adopted it were slave
States mainly, and the continuance or abolition of the institution
was carefully reserved to the people of each State. But the
Government which is prescribed to the people of the States by
this bill is, in its origin, in violation of the spirit of republican
ism. What is a " republican form of government"?
Madison, in the thirty-ninth number of "The Federalist,"
asks and answers the question:
"What, then, are the distinctive characters of the Republican form?"
11 If we resort for a criterion to the different principles on
which different forms of government are established, we may define a re
public to be, or at least may bestow that name on, a government which
derives all its powers, directly or indirectly, from the great body of the
people." . . . "It is essential to such a government that it be
derived from the great body of the society. " . . . * ' It is sufficient
for such a government that the persons administering it be appointed
either directly or indirectly by the people."
Can there be any doubt, therefore, that the governments in
existence in these States at the time the rebellion was inaugu
rated were republican within the meaning of the Constitution?
To make them such it is essential that they be derived from the
people governed, not imposed upon them by other governments,
States, or people. Nevertheless, we propose by this bill, under
the pretence of fulfilling our guaranty to them of a republican
form of government, to compel them to adopt a constitution and
government as to their local State matters, not originating from
themselves, or in accordance with their wishes, but dictated to
240 GREAT AMERICAN DEBATES
them by us ; and we will trample upon all their rights, and rule
over them by our appointees, levying upon and collecting taxes
from them for our treasury without their having any represen
tation until they do our bidding in reference to the details of
their State constitution. This is indeed guaranteeing to them a
new kind of republican government ! Are we willing to occupy
the position before the world, or the American people, in which
the passage of this bill will place us? I hope not. Let us sup
press the rebellion in these States; drive out those who have
usurped the State government, and restore it and the adminis
tration of it to those who have been loyal always in their hearts,
I trust and believe many such will be found, and to those whom
we think it wise and proper to recognize as citizens in each of
those States under an amnesty.
Daniel W. Gooch [Mass.] supported the bill, par
ticularly that part of it which established a military
government for the seceded States until such time as the
civil government was reconstructed.
As the government which has given its adhesion to the rebel
confederacy can never be recognized by the United States, a new
government must be organized during the military occupation,
which can, at the proper time, be recognized by Congress. 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 mili
tary 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 Govern
ment. The opinion of the Supreme Court of the United States
in Luther vs. Borden et al. is precisely to this point :
"Under this article of the Constitution [article four, section four] it
rests with Congress to decide what government is the established one in a
State. For as the United States guarantee to each State a Eepublican form
of government, Congress must necessarily decide what government is estab
lished in the State before it can be determined whether it is Eepublican
or not. And when the Senators and Representatives of a State are admitted
into the councils of the Union, the authority of the government under
which they are appointed, as well as its republican character, is recognized
by the proper constitutional authority. And its decision is binding on
every other department of the government and could not be questioned in
a judicial tribunal."
RECONSTRUCTION IN WAR TIME 241
The question of the recognition of a government in one of
the revolted States does not differ at all from the question of
recognition of the government in any State in which the legiti
mate government has been interrupted, overthrown, or de
stroyed, and the Federal power invoked to determine which the
established and legitimate government is. The question is a
political one, and is to be decided by Congress, not by the
Executive or the judiciary, and the most authoritative decision
which Congress can give to the question is the admission of Sena
tors and Representatives to seats in the councils of the nation;
and, as each House is the judge of the elections, returns, and
qualifications of its members, each must determine for itself
what government it will recognize as the established one in any
State, and when the Senate and the House have by the admis
sion of members to seats decided in favor of the same govern
ment in any State the question is settled, and the decision bind
ing on the other departments of this Government.
Nehemiah Perry [Dem.], of New Jersey, opposed the
bill. He declared that it was a "political artifice " in
tended for effect in the coming presidential election.
The operation of this scheme would be, by a political fiction,
to bring back the whole State into apparent but unreal relation
with the Union, enable it, or the fragment acting in its name,
to elect United States Senators, and by pretended elections to
send its full complement of Representatives to the House of
Representatives. 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 main
tained by our armies in North Carolina, Louisiana, Texas, Ala
bama, Florida, Arkansas, and elsewhere may send the pretended
full delegations of those States to this House.
But, Mr. Speaker, this plan to " reestablish ' ' State govern
ments is based on the assumption that they have been destroyed.
This, sir, I deny; nor can they be destroyed unless the rebels
are finally victorious, and establish their independence.. We
may be utterly destroyed by a superior power, State after State
might be overrun, our capital might be captured and destroyed,
but in such a case only can our Constitution be torn in frag
ments or our Union destroyed. When we have absolutely suc
cumbed to the power of an enemy all our institutions will
VII— 16
242 GREAT AMERICAN DEBATES
crumble into one fatal ruin, and our glorious democratic Re
public be consolidated into the kingdom of a tyrant. But till
this happens our Union and Constitution possess a principle of
perpetual vitality, no death of a State and no severance of it
from the Union. The life-blood may cease to flow for a time
between the center and the extremities, but immediately on the
removal of those hindrances and obstructions the life-bearing
current will again leap through vein and artery, and the whole
frame will once more rejoice in renewed health and vigor.
Fernando Wood [Dem.], of New York, opposed the
bill.
I contend that, whatever may become of the Federal Union,
the States themselves have a positive existence. The Federal
Union is the creation of the States, and hence cannot become
more powerful than the creator. The States which claim the
right to withdraw from the Union do not alter their positions as
States ; they retain the same attitude toward each other that they
held anterior to the American Revolution and to the adoption of
the Constitution. In seceding from the Union they are, there
fore, still distinct political communities with their own State
constitutions and forms of government deriving authority from
the people. Whatever doubt as to their relation to the Federal
Government, there can be none as to their relation to each other
and as to their individual local domestic independence.
William D. Kelley [Pa.] supported the theory of his
colleague, Mr. Stevens, that the States in seceding had
neither retained nor resumed their individual sover
eignty, but had committed suicide in so far as their con
stitutional rights were concerned, and were in the status
of Territories.
Is there a State of South Carolina? Pray who represents it
on this floor? Who in the other end of the Capitol? Will you
tell me what judge comes from a circuit whereof that State is a
part to sit in the councils of our Supreme Court, or what judge
holding authority from the President and Senate of the United
States administers the laws in its district court ? Who or where
are the marshals, collectors of its ports, or postmasters, who hold
power from our Government and act in its name and behalf?
So, too, of the other confederated States. Where or how do you
feel the influence of any of them in this Government ? How do
RECONSTRUCTION IN WAR TIME 243
you enforce the Constitution and laws within the territory once
governed by the constitutions of those States? Ah, sir, the
sovereign people, or, to speak more precisely, 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.
Sir, the destruction of a State by the severance of the con
stitutional ligaments that bind it to this Government is one
thing ; but the government of the people upon the territory, the
ultimate right to govern, is quite another. The sovereign right
of eminent domain is not with the State. Do .not, therefore, let
me be misunderstood as arguing that the people of a State may
oust the jurisdiction and right of the nation, or transfer any
territory within the limits or jurisdiction of the United States
to a foreign power. They cannot. Nor can they take themselves
out of the jurisdiction of the country unless they leave the limits
of its territory. To permit this would be to dissolve our Govern
ment; and whoever attempts it must be punished as a traitor.
The President and Congress of the United States are bound to
resist such an attempt, though it require the expenditure of
every able-bodied man and the last dollar of treasure. Their
oath to support and defend the Constitution binds them to re
conquer possession of territory which is attempted to be thus
taken from the people and the Government, as it does to defend
the country against any other foe who strikes at the nation 's life
or attempts to divide its territory.
But the people of our once sister States have not merely de
stroyed their State governments; they have established others,
unrecognized by our Constitution, and have confederated in a
foreign and hostile government. Thus they are alien enemies,
though they occupy territory within the limits of the Union.
That territory belongs to the people of the Union and their pos
terity through all time, and none but a traitor or coward would
surrender it.
The States are out of the Union, but the territory belongs to
the United States, and the people, if they remain upon it, must
be governed by the Constitution and laws of the United States.
The State constitutions having been overthrown, it belongs to
Congress to provide for the reconquest of the territory and for
its government; and it is the duty of the Executive to effect
that conquest by any and all means which are known to mod
ern warfare and are within the law of nations. These are
the only limitations, not only upon the power, but upon the
duty of the Government.
244 GREAT AMERICAN DEBATES
Mr. Kelley then stated that, according to this theory,
new States might be constructed out of the seceded ter
ritory not necessarily coterminus with the old ones.
I care not whether the States to be instituted be as large as
Texas or as small as Delaware. When any given portion of the
country shall be peopled by loyal men, who shall meet in con
vention and adopt a constitution and present it to Congress
asking admission into the Union, it will be our duty to consider
the constitution and to determine on the question of admission.
Neither the Constitution nor the President's amnesty proclama
tion makes it necessary that the limits or name of a future State
shall be determined by what existed prior to the overthrow of
the now rebellious States.
On May 4 Samuel S. Cox [0.] spoke against the bill.
These plans of regeneration involve a change in the structure
of the Government. They break down the spirit of municipal
independence, in destroying which, as De Tocqueville has shown,
you destroy the spirit of liberty. No matter what form is left,
the despotic tendency will inevitably appear when the local au
thority is usurped. If you leave any form of government, it is
the will of the Executive, it is a despotic centralization: Rus
sian, Asiatic, the rule of military bashaws or provincial kinglets.
Whether appointed by Congress or the President they hold their
power from Washington, and they must remain at the head of
their troops, and at the call of their chief. Our Republic, then,
deserves not its name. It is no longer the ' ' United States. ' ' It
is a united State, a geographical unit, holding together subject
provinces by the brute force of petty tyrants.
Believing that the scope and aim of the proclamation will
not restore the Union nor propitiate any portion of the South,
except demagogues and hirelings, who sell their birthright for
the price of power, let us inquire what motive could have in
duced the President to proclaim it, in a moment of success to
our arms and depression to the South. One suggestion will
satisfy as to the motive. I am sorry to believe it ; but the Presi
dent desires renomination. He is a man whose mind has every
angle but the right angle. In his nature cunning contends with
fanaticism. From the time he developed his irrepressible con
flict doctrine, so much praised by the gentleman from Illinois
[Mr. Arnold], until its latest expression in his last message, his
course has been equivocal. But meanwhile how shrewdly he has
RECONSTRUCTION IN WAR TIME 245
balanced between the factions of his party. His inaugural rec
ognized his obligations to the Constitution. He would not inter
fere with slavery. How prodigal were his promises to the bor
der. How quick to plant his foot on Phelps, Hunter, and
Fremont, for playing Augustulus. He desired some day to play
Augustus. Abolitionism should be hatched under no influences
but his own. How he lectured one of his editors for impatience.
Conservatives held up his hands while he prevailed against these
radicals. He toyed with emigration, colonization, and compen
sation schemes. He made a gradual emancipation theory with a
short fuse which soon exploded. It hurt no one. But the time
came for him to play revolutionist ; and with seeming reluctance
he issued the proclamation of emancipation. He desired the
people to pass on it. They did. They condemned it in 1862.
He adhered to it. In his Springfield letter, and in his last mes
sage, he dedicates all power to its execution. Meanwhile, a con
test springs up as to the State suicide doctrine. It divides his
party, and even the Cabinet. He has Missouri on his hands.
Radicals are rampant. He acts conservative a while until the
days of November, 1864, begin to approach, then, lo ! this mes
sage as the climax of his long series of ambiguities. That I may
do the President no injuslice, I quote from his own partisan,
Senator Samuel C. Pomeroy [Kan.], in his circular, who says:
"The people have lost all confidence in Mr. Lincoln's ability to sup
press the rebellion and restore the Union. He has been weak and vacillat
ing, wasteful of national blood and treasure, profligate and corrupt. ' '
There is only one solution for these inconsistencies. He is
trying to please both wings of his party to secure his nomination.
With dexterous chicanery he has phrased and framed his late
plan so that it may admit of two voices. He will not give up his
emancipation proclamation or the confiscation and penal laws.
"To abandon them now," he says, "would be not only to re
linquish a lever of power, but would also be a cruel and an
astounding breach of faith. ' ' This should suit the radicals. For
a lighter shade of his party he promises what is a mere delusion
— an adjudication of the questions of their legality by the Su
preme Court. True, he has declared all means like these which
he now promulgates unconstitutional ; yet he would submit them
to the court! When, and how? Why, after he has made the
slave a freedman by the sword ! What a mockery is such a sub
mission. But it will do to make him a candidate, and, more
than that, it might elect him President. If his plan of making
one tenth rule in the States should succeed, then he will have
246 GREAT AMERICAN DEBATES
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 !
Surely a candidate with so fair a chance for a gigantic, al
most a continental fraud as this, must commend himself to a
party whose use of power has made a debt of $2,000,000,000 and
an expenditure equal to the expenditure of all former Adminis
trations. Hence, when this amnesty to rebels was announced,
it was regarded as a political movement only, and the excitement
did not equal that of a prize fight. No one was affected by it.
It was nothing but a bold attempt to perpetuate power, at the
hazard of revolutionary war in the North and protracted war
in the South.
The pretence of the President is to reconstruct the Union.
Where did he get his authority to build anew what we can never
agree has been destroyed? Is it a part of the war power or
the pardoning power? It is the "best mode the Executive can
suggest, with his present impressions." Will any one point
out the clause of the Constitution which would even create an
"impression" that the Executive has the function either of
lawgiver, State constructor, or supreme dictator? His meekness
in referring to Congress and the judiciary the legality of his
acts after they are accomplished is a piece of effrontery to which
Louis Napoleon has not yet arrived. Where did this unfledged
Caesar get his warrant to create sovereignty ?
I propose to discuss the President's plan in the following
order :
First, the oath ; second, the republican form of the govern
ment to be reconstructed; third, the question whether the State
governments in the rebel States are vital ; fourth, some wise and
practical plan such as will aid in restoring the Union under the
Constitution.
1. The oath. — There is a sort of odium historicum attached
to all political test oaths. They are not original with the Presi
dent. 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.
The abolition oath is the basis of the new republican form
of government. All who do not agree to that are excluded. All
who do not agree to the pestilent theory of State death are also
excluded. Hence this plan would allow any recent rebel who
RECONSTRUCTION IN WAR TIME 247
takes the oath to make a unit in the one-tenth, and excludes
the Union man, who has not forsworn his faith in the vitality of
the States, and who will not swear to support policies and laws
to which he can never adhere. What becomes of the many thou
sand loyal men of Tennessee, of Texas, of North Carolina, of
Arkansas, of Louisiana? They are set aside for those whose
oaths will bind them long enough to vote, and who, to save their
lives and property, will swear with facility. Going upon the
doctrine that all the rebellious districts are unsound, assuming
the ground that the territory South, being belligerent, outlaws
all, whether loyal or not, the President applies this bitter cup to
the Union men who have never flinched in their love for the flag.
These men must quaff the cup of bitter waters before they can
stand before the world as the builders of the new temple pro
posed by the President ! If they were worthy of association in
this great cohort of States they would scorn reenfranchisement
by such a plan. If there were no other reason to reject this
juggling scheme, justice to "the faithful found among the faith
less" South would demand its rejection.
The truth is, a test oath to require citizens to support his
policy as to slaves is not an oath of allegiance to republican
government, but to the Republican party. It is an oath of fealty
to Abraham Lincoln. He sends out heralds to proclaim : ' ' Ho !
ye ; all who will prepare to forswear your sentiments and enter
into an arrangement to make new States with one-tenth over
nine-tenths, and thus form electoral colleges to vote for me, I
swear by my army and navy that you, though you are pardoned
criminals, shall be the corner-stones in the new States, and shall
have the shield of the Executive and the protection of the flag ! ' '
In vain we search Spanish- American annals for so shameless a
pronunciamento for revolution and anarchy. It is thus, Mr.
Speaker, that your party seeks to unhinge the massive portals
which lead within the chambers of reserved popular power,
those doors which, for so many years on golden hinges turning,
opened so readily to the States as they entered within the sacred
adytum of our political faith.
There is one answer to these propositions always on the lip
of the anti-slavery devotee. He holds that no slave State can be
accounted republican. This would be news, indeed, to the Jeffer-
sons, Washingtons, Madisons, and Adamses, who established these
States as republican, twelve out of thirteen being slave at the
outset. This would be news, indeed, to the pioneers of the
Northwest, to the early settlers of Ohio, who remember the deed
of cession of Virginia, whereby our sovereignty was forever
248 GREAT AMERICAN DEBATES
declared to be equal to and inviolate as that of the slave State
of Virginia.
But what sort of republicanism is that which builds a State
from a small minority of its people ? The majority of a people,
expressing its own will, forms a republic. A minority, or even
a majority, following the will of a despot, forms a monarchy.
One-tenth of the legal voters ruling nine-tenths is an oligarchy.
Reconstruction of republican governments on such a basis is as
absurd as the structures built by the architects in Gulliver, who
began their houses at the roof in the air ! The President quotes
the guaranty of the Constitution as to republican State govern
ments, and promises under its sanction protection to these
pseudo-republics ! But he forgets that, if the Southern States are
deceased, or out of the Union, there is the third section of article
fourth of the Constitution which provides for the admission of
States. Does the President in his theory propose to disregard
this clause? Unless Congress consent all these scaffoldings,
erected by his own will, will tumble to naught. If States can
be declared dead, or burned out by the fires of war, perhaps
New England may some day find her theory come home, in a
reconstruction of her six States into one, and the reduction
of her twelve Senators into two ! Lines of longitude, as well as
of latitude, may sometimes reconstruct States.
The basis of our Federal Government is States, having con
stitutions and laws — the emanation of the popular will. This
will is expressed through suffrage. This suffrage in States is
regulated by their own constitution and laws. State voters
thus qualified, and they only, can vote for members of Congress.
When, therefore, the President undertakes to breathe into a State
the breath of life by a new code of suffrage, even if the State
were defunct, he usurps a power never granted, and a sover
eignty belonging solely to the people. If these States in rebel
lion are destroyed — if the tabula rasa remains, upon which the
President can write new constitutions, with new qualifications
for voters — then secession and revolution have done legally what
no one but a rebel or traitor ever believed could be done.
This brings me to the radical question of the day. The
message of the President and the bill of the gentleman from
Maryland assume that the State governments in the rebel States
are out of existence or usurped, and that the territory should
be governed as such by the United States until new State gov
ernments shall be formed. The President does not commit him
self to this plan as the only one. Very well. But one thing
he has assumed — that the old States are gone. But let us do him
RECONSTRUCTION IN WAR TIME 249
justice. He suggests that on * ' reconstructing a loyal State gov
ernment in any State, the name of the State, boundary, the sub
divisions, etc., may be maintained"; provided always the aboli
tion policy prevail. This is like the prescript of the old Sul
tan, who, in commanding an obnoxious vizier to be ensacked and
thrown into the Bosporus, generously hoped his turban and
clothes might remain unmoistened.
I know it is said that he repudiates the policy of reducing the
States to Territories. His plan is to select, as nearly as may be,
the old building spot ; perhaps use some of the old foundations,
say one-tenth; but he changes radically the plan and structure
of the building, and takes away from its lord the sovereign con
trol of the establishment. He insists that there shall be homo
geneity of arrangement in the structure; that for different
conditions, classes, systems, climate, and position the same
relations shall be instituted. This plan is not only absurd
in philosophy, unsound in economy, but revolutionary in prac
tice. He, in fact, says, "I shall fight on to keep the Southern
States out until they conform to my views as to negroes. My
abolition condition to Union is inexorable ! The proclamation
shall be on a par with the Constitution. Let no one bleed for
one without dying for the other ! ' ' God help the nation, plunged
in an abyss of blood, for such crudities!
Surely, if the State suicide doctrine be sound, this plan of
rebuilding is not. Let me consider that State suicide doctrine.
It professes to be based on the decision of the Supreme Court
in the Hiawatha case. That decision is perverted to sustain this
theory. The court condemned certain property captured, be
cause the property was within the lines of the enemy actually
holding those lines by force, though without right, and not
because of the moral or political relation of the owner. The
court decided nothing as to the legal and political status of
the owner, but because the property would help the enemy it
was to be taken as prize of war. There is in that decision no
recognition of the right of secession, much less of the monstrous
and cruel doctrine that rebels in arms can abolish the legal
rights of loyal men or the institutions of States.
If war blots out the States insurgent by virtue of its terri
torial and belligerent character, then war does by its violence
what secession would do by its ordinances. The right to ex
punge a State is coordinate with the right to secede. If a State
can be forced out by the vote of its own sovereignty or by com
binations of men without a constitutional amendment, then any
State can be expelled by Federal action. If the Union becomes
250 GREAT AMERICAN DEBATES
disagreeable to a State, then the State may become disagreeable
to the Union; and, if a State may retire at pleasure, why can
not a State be repudiated at will? These rights, if they exist,
which I deny, correlate. They are inseparable. Suppose it had
been proposed to expel South Carolina from the Union for her
contumacy, or Massachusetts for her intermeddling, what a
burst of indignation we should have had from each ! They
would have exclaimed: "Show us the power to throttle our
State sovereignty by denying us participation in this blessed
Union. What! strip us of our American citizenship, place us
outside of your navigation and commercial laws and treaties;
leave us at the mercy of foreign powers ; belittle us to nothing ;
rob us of our common interests in a common treasure, territory,
government, history, and glory. Never!" Yet wherein does
this claim of holding these States South as conquered provinces
by military force, degrading the equal dignity of the States
by the creation of a new sovereign power, differ in principle
from secession?
If secession be a nullity, and if the Constitution is not im
paired nor the rights of the States destroyed, then I can see
how arms, inspired by wise and persuasive measures, may, in
time, redeem the States; but, on the other theory, all the tears,
miseries, confiscations, and blood are in vain, in vain, in vain.
Can we be surprised, therefore, that an analytic mind like that
of the Postmaster- General should have at once descried in
these fallacies of abolition a conspiracy in aid of the rebellion?
How, then, is it possible to restore local and State sover
eignty and thus unite our hapless and lacerated country? His
tory never presented so grand a problem for statesmanship.
I approach it with something of that awe which solemnizes the
soul when we enter within some vast and consecrated fabric —
vistas and aisles of thought opening on every side, pillars and
niches and cells within cells, mixing in seeming confusion, but
all really in harmony, and rich with a light streaming through
the dim forms of the past, and blessed with an effluence from
God, though dimmed and half lost in the contaminated reason
and passion of man.
Conscious of the magnitude of this rebellion, and oppressed
with the feebleness of the policy directed against it, I still be
lieve in the restoration of the old Union. Hence, whatever
method I should advocate for the conduct of the war, or the
celebration of peace, I am forever concluded against one con
clusion — the independence of the South. I believe the principle
of unity to be absolutely superior to the right of sectional na-
RECONSTRUCTION IN WAR TIME 251
tionality. The destiny of these United States is to continue
united, and, perhaps, to add other States, until the whole con
tinent is in alliance. Our fate is to expand and not to contract
our influence or our limits. All other notions are but transitory
and evanescent.
I am happy to be in accord with the President, if, indeed, he
hold yet to the doctrine announced in his inaugural: "Physi
cally speaking, we cannot separate." I had adopted the same
sentiment, that there were Union foundations, by the very
political geology of God, upon which the old Union could and
would be rebuilt.
The sentiments of the President in his inaugural are founded
in principle, and drawn by correct deductions from history.
They are the germ of all true politics. Sorry am I that in a
moment of pressure and temptation he should have been drawn
from them by the weird whisperings of ambition under the bale
ful eclipse of fanaticism.
Military rule, anarchy, destruction of individual opinion,
speech, and liberty will be our experiences, unless we take the
straight, short, and right line of the Constitution. We may
wander forty years in a political wilderness before we attain the
promise of our youthful and exultant nationality.
Before attempting to show how this nationality may be re
stored, it would be best to define it. What, then, is nationality?
Let the definition of the English logician, John Stuart Mill,
answer: "We mean a principle of sympathy, not of hostility;
of union, not of separation. We mean a feeling of common in
terest among those who live under the same government, and
are contained within the same natural or historical boundaries.
We mean that one part of the community shall not consider
themselves as foreigners with regard to another part ; that they
shall cherish the tie which holds them together; shall feel that
they are one people; that their lot is cast together; that evil
to any of their fellow-countrymen is evil to themselves; and that
they cannot selfishly free themselves from their share of any
common inconvenience by severing the connection."
Is it not strange to a dispassionate thinker that those who are
not hostile in the sense of hate to the South, those who would woo
them to the ancient order and Union by reason, old associations,
the allurements of peace and patriotism, to make again of the
circle of equal States the old Federal sovereignty, should be held
to be the least national; while those who have so far forgotten
the common interest of all under the same government, who
regard themselves as alien to the South, even as the South
252 GREAT AMERICAN DEBATES
regard themselves as alien to us, should be held as the most
national ? I do proclaim it, on the basis of a logic incontestable,
that he among ns who wishes most evil to any part of the coun
try IS THE MORAL TRAITOR AND SOCIAL ANARCH.
We are powerful in proportion as we are national. If we
should follow the advice of passion and treat the Southern
States now in civil war as England treated Ireland, we become
weak and denationalized. If we pursue the South with a licen
tious uncivic soldiery, gloating with anticipations of the plunder
of private effects, or with the promises already held out of
parceling out the lands of the South as the bounty which re
venge pays for pillage, thus whetting a tigerish appetite for a
great festival of blood and rapine, we may be sure that the
special Nemesis which Herodotus traced through the early eras
of history will haunt the men who instigate and the men who
execute such a fell and imbecile policy. If, as in Eome once
and in Spanish- America now, we bribe one part of the nation by
the robbery of another portion, then we may be sure that con
flicts will be renewed when exhaustion is overcome, and our
flag, like that of old Spain, will typify a river of blood between
margins of gold. If we would avoid the constant aggregation
and disintegration of feeble masses in different provinces, such
as the history of South America demonstrates, we must learn
to carry out, better than the President has done, his own prin
ciple of friendly legislation, instead of repellant alienation.
Powerful as are our armies — gradually encroaching amid many
mistakes and vicissitudes upon the territory which is insurgent —
great as are our Parrott guns, and invulnerable as are our iron
clads, one thing we have to learn yet from history, that our best
soldiers are not like Charlemagne's paladins, possessed of en
chanted weapons. The weapon which wounds the cause of re
bellion, and yet which can transmute the rebel into the patriot,
is the enchantment of friendship. He who would destroy a part
of his own country, as if it were alien, has no more love for it
than Saturn had for the children of his own loins whom he
destroyed. Such a creature is not a patriot, even if he were
a man. Patriotism never desires to weaken or disgrace, but
always to strengthen and glorify the country.
Confidence and allegiance have been begotten and renewed
in other lands rent with civil feuds ; why not in this ? To an
swer this I shall consider, first, the mode by which such results
can be attained, and, secondly, the illustrations from history
showing such results.
1. States or societies are made up of individuals. To re-
RECONSTRUCTION IN WAR TIME 253
form society or control masses individuals must be reached. M.
Guizot, in his " History of Civilization" (page 25), has demon
strated that two elements are comprised in the great fact we call
civilization — the progress of society and the progress of individ
uals. The one is but the external phenomenon of which the other
is the cause. Society is merely the theater for the immortal
man. Society is made for man, not man for society. Society
dies, changes, rots, regrows, and decays again; man blooms in
immortal youth beyond this limited destiny. When, therefore,
you adopt a policy to restore States or rebuild the dismantled
social order, you must begin by reaching the character of men,
influencing their literature, their tastes, their maxims, their
laws and institutions, their industries, their wealth and its
distribution and means of attainment, their occupations,
their divisions into classes, and all their relations to each
other. Whenever you have harmonized these so as to give
contentment you may be assured that no military compression or
civil oppression can long keep the individuals interested from a
common consent to the common government.
Habitual discipline and regard for government on the part
of rulers and ruled, aided by religion and a common interest,
is the power which keeps men from becoming anarchical.
Combined with this civil discipline is the feeling of allegiance.
Without this feeling no State can be permanent. When the
rulers fail to give that protection which is the consideration and
correlative of allegiance, then allegiance fails, and society de
clines, despotism supervenes, or foreign conquest is imposed.
Let statesmen remember that this is the capital defect of our
rulers, and the proximate cause of our troubles. Thus remem
bering, let them study history with a view to the reinstatement
of that protection to labor, liberty, property, and life which
assures to the State the allegiance of the people. This feeling
is sometimes called ''loyalty." The French philosopher, M.
Comte, has thus described its essence: viz.: that there be in
the constitution of the state, whether a monarchy or democracy,
something which is settled, something permanent, and not to
be called in question."
The sacred something in our political system is the written
Federal Constitution and the system of State governments, both
having their basis on the sovereign will of the people of the
States. Not less sacred, because not less above discussion, are
the reserved rights of the States, and the still more important
reservation of sovereignty in the people. This is the essential
permanency of society in the United States. This was the
254 GREAT AMERICAN DEBATES
relation which all parties, whether at Charleston or Chicago,
agreed should not be disturbed, which the President declared
should not be disturbed by him, and the fear of whose disturb
ance has convulsed a nation of thirty millions. This mystic
union of the Federal and State systems was the sacramental es
sence, the divine appointment, above the storms and eddies of
discussion. In this were comprehended our ancient liberties and
ordinances. Even the domestic institutions of the State were
imbound with it. Indeed, it was the only fundamental law,
pervading our society as gravitation pervaded the stellar spaces.
Those, whether North or South, who failed to keep this es
sence sacred and sealed are responsible for the consequences.
Abolitionism, which lived by the disturbance of this system,
was like secession, for both sprang from the same direful agita
tion and the same disturbance of the Constitution.
But is there no light through the clouds of war? Have we
no solution for past wrongs, no immunity for future griefs ? Are
anger, hatred, scorn, revenge — the brood of wicked passions
rankling in the heart — are these to remain? And shall there
be no interregnum for the serene dynasty of peace and love,
to walk white-handed through this bleeding and bloody land?
Shall no one pour the lethean wave over the scenes of death and
the sorrows of mourning? Shall there be no recantation of
the oaths of fierce men, vowing revenge for homes wasted, prop
erty confiscated, brethren destroyed, and cities ruined ? 0 God !
Is there no hope that even time may not be allowed to assuage
the hates and griefs of this bloody era? Shall the young men
of to-day wear the rancor in their hearts till their hairs are
whitened for the tomb and teach their children and children's
children to perpetuate the hate of the fathers? If this is to
be the fate of our Union, then God has mocked His creatures
by fixing them in habitations bound together by the same skies,
rivers, mountains, and lakes; mocked them by fixing in their
hearts the principle of love, and cruelly flouted them by sending
to this star a Prince of Peace as an Exemplar and Savior !
Who are the men, or the fiends, who talk of utter extermina
tion? If it were possible it were execrable! To exterminate
the Southern people rather than reach them, as Mr. Lincoln
himself proposed, by friendly laws, is a crime more heinous
than rebellion. Let the pitiless destruction of the Moors of
Andalusia by Philip II, the merciless slaughter of the French
in La Vendee, Claverhouse 's bloody hunts after the Scottish
Covenanters, the stained and cadaverous cheek of Ireland, the
bloodshot eye of maddened Poland, the grim submission of re-
RECONSTRUCTION IN WAR TIME 255
vengeful Venetia, teach us by their history that powder can
not cement nor bombs bear messages of love. Superadd to your
force conciliation, and then your force may not be mere brute
violence. Force has welded by its blows, but they were tempered
in the fire of old and loving associations. lll do not fight the
South because I hate her," said Mr. Crittenden; "I love her
still." Conquest by force is only physical; subjugation implies
mental acquiescence on the part of the vanquished in the ideas of
the victor. Such a war, therefore, will produce only the status
quo ante bellum,1 leaving an absolute reciprocal negation; each
party denying the claims of the other, and leaving no common
ground for a truce to intellectual conflict.
The fact that war has come and that separation is impossible,
makes more urgent the ascendency of a party whose first and
only preference is for the Union through compromise, and who
shall, at least, be allowed to try the experiment of reconciling
the States by guaranties similar to those proposed in 1861. If
it be found impossible to restore the old association of States
by such negotiation, then, and not till then, can statesmen begin
properly to ponder the other problems connected with subjuga
tion and recognition. 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. Of the two evils of subjugation or recogni
tion I make my choice of — neither.
2. To restore allegiance and inspire nationality let the
individual rebel in arms against us be reached by the arm of
our soldier, and when a noncombatant by the moderation and
paternal care of the Government. Let the military power of
the Confederates be broken. Use those and only those severities
of war which civilization warrants and which will make the
military power of the South feel the power of the nation; but
do not place any longer in their hands the armament of despair.
They have had that weapon for over two years. Let our rulers
forego their ostracism of the misguided citizen. Let an amnesty
be tendered which has hope in its voice. Give forgiveness to
the erring, hope to the desponding, protection to the halting, and
allay even fancied apprehensions of evil by the measures of
moderation. Thus, by confiscating confiscation, abolishing abo
lition, and canceling proclamations, by respecting private prop
erty and State rights, prepare that friendliness which will beget
confidence in the individual citizen. Thus will minorities be
transferred into majorities South, and the States discarding
1 The situation before the war.
256 GREAT AMERICAN DEBATES
the rebel authorities betake themselves to their normal and
proper sphere under the old order. If this cannot be done by
the present rulers, let other rulers be selected.
History teaches in vain if it does not contain lessons of mod
eration in civil wars. How were the feuds of the Grecian federa
tion accommodated ? How were the civil wars of Rome ended ?
How were the intestine troubles of England assuaged ? How was
La Vendee pacified by the generous Hoche ? How is it ever that
unity of empire and consentaneity of thought are induced?
How, except by the practice of that mildness which cares for and
does not curse the people.
The closest analogy to our condition is to be found in the
English civil war beginning in 1640. The English people are
our ancestors. They had what we have — a similar code of per
sonal freedom, great municipal independence, and a popular Par
liament. The causes of the war were complicated by religious
controversy; but the questions involved concerning the royal
prerogative and the popular privilege are closely allied to our
struggle. We know how the first Charles lost his head; how
Cromwell's iron hand rescued, for a time, England from an
archy. At his death, eleven military governments, under major-
generals like Monk, held almost absolute sway. Conspirators
were punished with death. Confiscations were common. Party
vengeance was rampant then as now, but the people 's representa
tives considered that they had to decide between a new civil war
and a restoration. Then came the famous declaration of Charles
II from Breda. It removed all hesitation and the restoration
began. The king in that paper declared that he desired to com
pose the distraction and confusion of his kingdom, to assume
his ancient rights, and accord to them their ancient liberties,
without further " blood-letting. " He conjured them to a per
fect union for the resettlement of all rights, under a free Par
liament.
When this declaration was read in Parliament — though it
was the false word of a designing tyrant — yet the restoration
of the second Charles was voted by acclamation! Nor would
the same sort of declaration from Abraham Lincoln be less pow
erful to restore the sovereign States to their old allegiance,
especially if followed by a national convention and the restora
tion of a party not unfriendly to the entire union of all the
States, with their "just rights." No distrust followed this dec
laration of the English king. He came to England. His jour
ney to London was one perpetual fete — one continued shout of
rejoicing ! Faction ceased. History records that Cavaliers were
RECONSTRUCTION IN WAR TIME 257
reconciled with Roundheads. Exiles showed no resentment in
the joy of their return. A violent reaction against revolution
began; war ceased; and the foundation was then laid for the
permanent stability which 1688 gave to England.1
Let us have done with juggling amnesties and ambitious
schemes, with philanthropic ferocity and enforced elections.
Under no such policy, pitched in the key-note of the President's
proclamation, or chanted in the mellifluous tones of the gentle
man from Maryland [Mr. Davis], can the South ever be held
in honorable alliance and harmony. A government inspired
thus would be out of all relations to the States of this Union.
It would have neither "the nerves of sensation which convey
intelligence to the intellect of the body-politic, nor the ligaments
and muscle which hold its parts together and move them in
harmony." It would be as Russia is to Poland, as England to
Ireland, the government of one people by another. It would
never succeed writh our race. It would never succeed with a
territory whose configurations are so peculiar and whose inter
ests are so varied as ours.
No citizenship is worth granting to those who dishonor
themselves to receive it. No common bond of allegiance or
nationality is possible on such terms. Mean and degrading con
ditions which unfit the citizen for manly equality are more
despicable than rebellion. You cannot expel the poison of
sedition by adding to its virulence. You cannot draw men from
crime by stimulating the motive which led to it. But the prin
ciple of mercy is all-powerful and eternal. It is the very gospel
of God; the very love which saves mankind. Inspired thus,
what might be done if a wise and sagacious Executive should
extend the same beneficent policy to the factions which are bleed
ing our beloved land !
Like the fugitive prophet upon Mount Horeb, we may ap
proach and interrogate Deity itself in our despondency and
for our deliverance. And, though, like him, we may hear the
roar of the whirlwind of war, though we may tremble amid the
earthquake of its wrath, and, though God may not be in the
storm, or the earthquake, yet we may find Him in the still,
small voice whose depth and sweetness are not those of tempestu
ous force or elemental strife, but soft as an angel's lute or a
seraph 's song, promising redress for wrong and deliverance from
calamity. Horeb stands as a monumental lesson to our rulers
forever, speaking the still, small voice of divine conciliation
amid the thunders of the law. I wait for that voice to be spoken.
1 The accession of William and Mary under constitutional guaranties.
VII— 17
258 GREAT AMERICAN DEBATES
My soul waiteth for it "more than they that watch for the
morning; I say, more than they that watch for the morning!"
George S. Boutwell [Mass.] supported the measure,
saying, however, that it did not go far enough.
There is one feature of the bill which does not receive my
approval, and to which I assent only in deference to what I
suppose is the present judgment of this House and of the
country. I speak of the limitation of the elective franchise to
white male citizens. The right of suffrage is not a natural
right, but it is the highest thing among political rights. No
community which denies the right of suffrage to any consider
able number of its adult male inhabitants can ever be safe
from intestine commotion, for wherever this right is so denied
the people cannot be safe or even free from oppression. And,
even if a community in which the right of suffrage is thus
limited should be free from actual oppression, still the Govern
ment could not escape the suspicions and charges which result
from an unjust distribution of political power. In free coun
tries the rights of the people are frequently acquired and they
are generally preserved by the ballot. When the ballot fails the
resort is to the sword. When you deny the ballot to one-third or
one-half of the people of the vast territory covered by the pro
visions of this bill, what do you leave for them or offer to them
but a resort to the sword as the means of removing or redressing
the grievances of which they are already the foredoomed vic
tims?
I had indulged the hope, until recently, that this House would
recognize the political rights of the colored race by securing
the elective franchise to certain classes, or at least to a single
class of those who hereafter should enjoy the protection of the
Constitution. The vote upon the amendment of the Senate to
the bill establishing the Territory of Montana dissipated at once
and for the present this hope. The country will speedily revise
our proceedings in this particular. Mark the progress of events !
It is not yet two years since you were willing to contribute to
the cause of the Union by the emancipation of the negro. I do
not now speak of gentlemen on the other side of the House. I
address myself to the friends of the Administration.
But now the President's proclamation of emancipation is
accepted with signal unanimity by the people of the country.
It has already received the considerate judgment of mankind;
and may we not also reverently believe that it receives the con-
RECONSTRUCTION IN WAR TIME 259
stant favor of Almighty God? I am aware that gentlemen on
the other side of the House still utter their accustomed denuncia
tions of the measure; but their words are like the wonderful
missile of the South Sea Islander, which cuts the air fiercely and
then falls harmlessly at the feet of him from whose hand the
weapon sped.
The people accept the freedom of the negro ; having recognized
his right to freedom, they bid him do service for the country.
When he has served the country in the field the justice of the
nation will guarantee to him the power to maintain his rights in
civil life.
Thus are events our masters ; and thus does the country hesi
tate even in the presence of these events to do those acts of
justice which are due to one race and necessary for the salva
tion of the other. When, and by what means, and for what
period of time do you expect to set up and maintain loyal gov
ernments in the rebellious districts of the Union unless you
confer the elective franchise upon the negro? The military
power must at some moment not remote be withdrawn. The
remnant of the dominant class will be powerful for a generation.
There is a large number of poor whites, unaccustomed to inde
pendent thought or to independent action. The colored people
are loyal, and in many States they are almost the only people
who are trustworthy supporters of the Union. Will you reject
them? I ask whether you will reject the civil and political
power of the colored people in the State of South Carolina, for
example? If I could direct the force of public sentiment and
the policy of this Government, South Carolina, as a State and
with a name, should never reappear in this Union. Georgia
deserves a like fate. When the Constitution was formed she
united herself with South Carolina and forced the recognition
of the institution of slavery in our Constitution. Florida does not
deserve a name in this Union. What then ? Let these three States
be set apart as the home of the negro. Invite him there by giving
to him local political power. Give him the right of suffrage
in those States, and the colored population, as rapidly as it can
be spared from the industrial pursuits of the North, will aggre
gate upon the shores of the Atlantic and the Gulf of Mexico.
Give them local self-government and let them defend themselves
as a portion of this Republic.
I do not ask that in any one of the loyal States where a
negro population exists, the right of suffrage shall be given
to them, but in these three districts, South Carolina, Georgia,
and Florida, I would provide for the right of suffrage to colored
260 GREAT AMERICAN DEBATES
persons. They have earned it by their services in the field, and
there is a degree of injustice in asking a man to peril his life
in the cause of the country and in defence of institutions in the
creation and conduct of which he has no voice whatever.
I ask for this people justice, in the presence of this exigency
when the life of the nation is in peril and when every reflecting
person must see that the cause of that peril is in the injustice we
have done to the negro race. They are four millions. They will
remain on this continent. They cannot be expatriated. It is
our duty to elevate them, to provide for their civilization, for
their enlightenment, that they may enjoy the fruits of their
labor and their capacity.
George H. Pendleton [Dem.], of Ohio, opposed the
bill. He said that, carrying out its principle, the su
premacy of Congress over State governments, to its
logical conclusion would destroy the rights of the loyal
States as well as those of the disloyal ones.
This doctrine is monstrous. It has no foundation in the
Constitution. It subjects all the States to the will of Congress;
it places their institutions at the feet of Congress. It creates
in Congress an absolute unqualified despotism. It asserts the
power of Congress in changing the State governments to be
" plenary, supreme, unlimited" — "subject only to revision by
the people of the whole United States. ' ' The rights of the peo
ple of the State are nothing, their will is nothing. Congress first
decides, the people of the whole Union revise. My own State
of Ohio is liable at any moment to be called in question for her
constitution. She does not permit negroes to vote. If this doc
trine be true Congress may decide this exclusion is anti-republi
can, and, by force of arms, abrogate that constitution and set
up another permitting negroes to vote. From that decision of
the Congress there is no appeal to the people of Ohio, but only
to the people of Massachusetts, and New York, and Wisconsin,
at the election of Representatives; and, if a majority cannot be
elected to reverse the decision, the people of Ohio must submit.
Woe be to the day when that doctrine shall be established, for
from its centralized despotism we will appeal to the sword!
Sir, the rights of the States were the foundation corner of
the Confederation. The Constitution recognized them, main
tained them, provided for their perpetuation. Our fathers
thought them the safeguard of our liberties. They have proved
RECONSTRUCTION IN WAR TIME 261
so. They have reconciled liberty with empire ; they have recon
ciled the freedom of the individual with the increase of our
magnificent domain. They are the test, the touchstone, the
security of our liberties. This bill, the avowed doctrine of its
supporters, sweeps them all instantly away. It substitutes des
potism for self-government; despotism the more severe because
vested in a numerous Congress elected by a people who may
not feel the exercise of its power. It subverts the Government,
destroys the Confederation, and erects a tyranny on the ruins
of republican governments. It creates unity — it destroys liberty
— it maintains integrity of territory, but destroys the rights of
the citizen.
Sir, if this be the alternative of secession, I should prefer
that secession should succeed. I should prefer to have the
Union dissolved, the Confederate States recognized; nay, more,
I should prefer; that secession should go on, if need be, until
each State resumes its complete independence. I should prefer
thirty-four republics to one despotism. From such republics,
while I might fear discord and wars, I would enjoy individual
liberty, and hope for reunion on the true principles of confedera
tion. From one strong centralized despotism, overriding the
rights of the people, overriding the rights of the States, I can
see no escape except in apathetic contentment with slavery, or
the oft-repeated, often-failing, always bloody struggles of de
spairing hope. 1 would rather live a free citizen of a republic
no larger than my native county of Hamilton, than be the
subject of a more splendid empire than a Caesar in his proudest
triumphs ever ruled, or a Napoleon in his loftiest flights ever
conceived.
Sir, I cling to the hope that these evils may yet be averted.
While I would prefer separation to the unity which this bill
would create, I would fain hope that we may not be compelled
to accept either alternative. If, before it is too late, the people
will see the designs of those now in power, and will replace
them with men who do not wish revolution, but do heartily wish
a restoration of the Union, men — who will seek by peace the
results which war has rendered well-nigh impossible — who will
try to attain by conciliation the ends which never can be reached
by subjugation — who will seek in consent the foundation of
the right of the Government, in States rights the guaranties of
the liberty of the citizen — in the Constitution the measure of
the power of the Government and the extent of the surrender of
perfect freedom imposed by the citizen upon himself — we may
hope that we may again have union and liberty; that interest,
262 GREAT AMERICAN DEBATES
which alone binds together nations occupying a territory like
our own, will assert its power and heal the wounds of war, and
bring us again into the bonds of fraternal peace.
But, if they will not now see these designs and avert them,
however long and bloody and desolating this war, it will end —
I predict it now while the thunders of battle ring in our ears and
the exultant shouts of victory rise upon the air — in recognition
of the Confederacy, in final separation, and in a longer, bloodier,
and more desolating war on the part of our people — of your
constituents, sir, and mine — to throw off the despotism which
will ere then have been firmly established over them.
The bill was passed on May 4 by a vote of 73 to 59.
It did not come up for discussion in the Senate until
late in the session — July 1. After considerable discus
sion and some amendment it was passed on that date
by a vote of 26 to 3.
The House disagreed with the Senate amendments,
and on July 2 the Senate withdrew its amendments by
a vote of 18 to 14.
The bill was presented to the President during the
last hour of the last day of the session (July 4) and he
refused to sign it, preferring that the plan be presented
to the people for their consideration. Accordingly, on
July 8, he issued the following proclamation:
PROCLAMATION CONGESTING RECONSTRUCTION
BY PRESIDENT LINCOLN, JULY 8, 1864
Presenting the bill, and giving the reasons that had
led him to submit it to the people, the President said :
Now, therefore, I, Abraham Lincoln, President of the United
States, do proclaim, declare, and make known, that, while I am
(as I was in December last, when by proclamation I propounded
a plan for restoration) unprepared, by a formal approval of
this bill, to be inflexibly committed to any single plan of restora
tion; and, while I am also unprepared to declare that the free-
State constitutions and governments already adopted and in
stalled in Arkansas and Louisiana shall be set aside and held
for naught, thereby repelling and discouraging the loyal citizens
who have set up the same as to further effort, or to declare a
RECONSTRUCTION IN WAR TIME 263
constitutional competency in Congress to abolish slavery in
States, but I am at the same time sincerely hoping and expecting
that a constitutional amendment abolishing slavery throughout
the nation may be adopted, nevertheless I am fully satisfied
with the system for restoration contained in the bill as one very
proper plan for the loyal people of any State choosing to adopt
it, and that I am, and at all times shall be, prepared to give the
executive aid and assistance to any such people, so soon as the
military resistance to the United States shall have been sup
pressed in any such State, and the people thereof shall have
sufficiently returned to their obedience to the Constitution and
laws of the United States, in which cases military governors will
be appointed, with directions to proceed according to the bill.
The radical Senators, Henry Winter Davis [Md.]
and Benjamin Wade [0.], addressed "to the supporters
of the Government " a "Protest" in which they said
that they had read the President's proclamation "with
out surprise, but not without indignation." The im
plied condemnation of the supporters of the measure in
his statement that its passage had been delayed till the
very last moment was insincere. The reverse was the
case; he had himself intrigued to secure this result, so
as to obtain an excuse for refusing it. Indeed, one of
the Senators closest to the President (James R. Doo-
little, of Wisconsin) had written to the heads of the
Louisiana government, which, as also the Arkansas gov
ernment, had been formed according to the President's
plan, and which would be reconstructed anew if the plan
of Congress were adopted, that the House bill would be
held as long as possible in the Senate and finally killed
by a pocket veto of the President.
Senators Davis and Wade charged that the Presi
dent's persistence in his own plan of reconstruction by
executive authority was inspired by his desire to use,
if necessary, the electoral votes of Louisiana and Ar
kansas to secure his reelection. They also pointed to
the abortive military expedition against Florida as evi
dence of the same purpose. They warned the country
that trouble would certainly ensue if the votes of Lou
isiana and Arkansas turned the balance in his favor.
264 GREAT AMERICAN DEBATES
"Is it to be supposed that his competitors, defeated by
these means, will acquiesce ?"
In conclusion they warned the President that they
and other members of the national legislature supported
"a cause and not a man," that "the authority of Con
gress is paramount and must be respected, and, if he
wished their support, he must confine himself to his
executive duties: to obey and execute, not make the
laws; to suppress armed rebellion by arms, and leave
political reorganization to Congress. "
In his annual message of December 6, 1864, the Pres
ident announced that 12,000 citizens in each of the States
of Arkansas and Louisiana had organized, in accordance
with his proclamation, loyal State governments with
free constitutions, and that there were movements in
the same direction in Missouri, Kentucky, and Ten
nessee.
The last speech of the President was upon recon
struction. It was delivered on April 10, the day follow
ing the surrender of Lee at Appomattox.
HOME AGAIN IN THE UNION "
SPEECH ON RECONSTRUCTION BY PRESIDENT LINCOLN
The subject of reconstruction is fraught with great difficulty.
Unlike a case of war between independent nations, there is no
authorized organ for us to treat with — no one man has authority
to give up the rebellion for any other man. We simply must
begin with and mold from disorganized and discordant elements.
Nor is it a small additional embarrassment that we, the loyal
people, differ among ourselves as to the mode, manner, and
measure of reconstruction. As a general rule, I abstain from
reading the reports of attacks upon myself, wishing not to be
provoked by that to which I cannot properly offer an answer.
In spite of this precaution, however, it comes to my knowledge
that I am much censured for some supposed agency in setting
up and seeking to sustain the new State government of Louis
iana.
In this I have done just so much as, and no more than, the
public knows. In the annual message of December, 1863, and
in the accompanying proclamation, I presented a plan of recon-
RECONSTRUCTION IN WAR TIME 265
struetion, as the phrase goes, which I promised, if adopted by
any State, should be acceptable to and sustained by the executive
Government of the nation. I distinctly stated that this was not
the only plan which might possibly be acceptable, and I also
distinctly protested that the Executive claimed no right to say
when or whether members should be admitted to seats in Con
gress from such States. This plan was in advance submitted to
the then Cabinet, and distinctly approved by every member of
it. ... The message went to Congress, and I received many
commendations of the plan, written and verbal, and not a sin
gle objection to it from any professed emancipationist came to
my knowledge until after the news reached Washington that
the people of Louisiana had begun to move in accordance
with it.
I have been shown a letter on this subject, supposed to be
an able one, in which the writer expresses regret that my mind
has not seemed to be definitely fixed upon the question whether
the seceded States, so-called, are in the Union or out of it. It
would, perhaps, add astonishment to his regret were he to learn
that since I have found professed Union men endeavoring to
answer that question, I have purposely forborne any public ex
pression upon it. As appears to me, that question has not been
nor yet is a practically material one, and any discussion of
it, while it thus remains practically immaterial, could have
no effect other than the mischievous one of dividing our friends.
As yet, whatever it may become, that question is bad as the basis
of a controversy, and good for nothing at all — a merely perni
cious abstraction. We all agree that the seceded States, so-called,
are out of their proper practical relation with the Union, and
that the sole object of the Government, civil and military, in
regard to these States, is to again get them into their proper
practical relation. I believe that it is not only possible, but in
fact easier, to do this without deciding or even considering
whether those States have ever been out of the Union than with
it. Finding themselves safely at home, it would be utterly im
material whether they had been abroad. Let us all join in do
ing the acts necessary to restore the proper practical relations
between these States and the Union, and each forever after
innocently indulge his own opinion whether, in doing the acts,
he brought the States from without into the Union, or only
gave them proper assistance, they never having been out of it.
The amount of constituency, so to speak, on which the Louisiana
government rests, would be more satisfactory to all if it con
tained fifty thousand, or thirty thousand, or even twenty thou-
266 GREAT AMERICAN DEBATES
sand, instead of twelve thousand, as it does. It is also unsatis
factory to some that the elective franchise is not given to the
colored man. I would myself prefer that it were now conferred
on the very intelligent, and on those who serve our cause as
soldiers. Still, the question is not whether the Louisiana govern
ment, as it stands, is quite all that is desirable. The question
is : Will it be wiser to take it as it is and help to improve it, or
to reject and disperse? Can Louisiana be brought into proper
practical relation with the Union sooner by sustaining or by
discarding her new State government? Some twelve thousand
voters in the heretofore slave States of Louisiana have sworn alle
giance to the Union, assumed to be the rightful political power
of the State, held elections, organized a State government,
adopted a free State constitution, giving the benefit of public
school equally to black and white, and empowering the legisla
ture to confer the elective franchise upon the colored man.
This legislature has already voted to ratify the constitutional
amendment recently passed by Congress, abolishing slavery
throughout the nation. These twelve thousand persons are thus
fully committed to the Union and to perpetuate freedom in
the State — committed to the very things, and nearly all things,
the nation wants — and they ask the nation's recognition and its
assistance to make good this committal. Now, if we reject and
spurn them, we do our utmost to disorganize and disperse them.
We, in fact, say to the white man : You are worthless or worse ;
we will neither help you nor be helped by you. To the blacks
we say : This cup of liberty which these, your old masters, held
to your lips, we will dash from you, and leave you to the
chances of gathering the spilled and scattered contents in some
vague and undefined when, where, and how. If this course,
discouraging and paralyzing both white and black, has any
tendency to bring Louisiana into proper practical relations with
the Union, I have so far been unable to perceive it. If, on the
contrary, we recognize and sustain the new government of Louis
iana, the converse of all this is made true. We encourage the
hearts and nerve the arms of twelve thousand to adhere to their
work, and argue for it, and proselyte for it, and fight for it,
and feed it, and grow it, and ripen it to a complete success.
The colored man, too, in seeing all united for him, is inspired
with vigilance, and energy, and daring to the same end. Grant
that he desires the elective franchise, will he not attain it
sooner by saving the already advanced steps toward it than by
running backward over them? Concede that the new govern
ment of Louisiana is only to what it should be as the egg is to
RECONSTRUCTION IN WAR TIME
267
the fowl, we shall sooner have the fowl by hatching the egg than
by smashing it. ...
What has been said of Louisiana will apply generally to
other States. And yet so great peculiarities pertain to each
State, and such important and sudden changes occur in the same
State, and withal so new and unprecedented is the whole case,
that no exclusive and inflexible plan can safely be prescribed
THE NATION MOURNING AT LINCOLN'S BIEE
By Tenniel in London "Punch"
as to details and collaterals. Such exclusive and inflexible plan
would surely become a new entanglement. Important principles
may and must be inflexible. In the present situation, as the
phrase goes, it may be my duty to make some new announce
ment to the people of the South. I am considering, and shall
not fail to act when satisfied that action will be proper.
On the outskirts of the crowd assembled to hear the
address was one John Wilkes Booth, an actor, who had
come to Washington the previous Saturday and was
268 GREAT AMERICAN DEBATES
stopping at the National Hotel. With him was a young
man named David E. Herold.
It was when Lincoln made use of this expression:
1 1 It is also unsatisfactory to some that the election fran
chise is not given to the colored man. I would myself
prefer that it were now conferred on the very intelli
gent, and on those who serve our cause as soldiers,"
that, as Herold related, Booth nudged him and said in
a tone of bitter resentment: "That means nigger equal
ity; now, by God! I'll put him through. "
CHAPTER IX
RECONSTRUCTION BY EXECUTIVE AUTHORITY
President Johnson's Severe View of Treason and Its Punishment — Sec.
William H. Seward Converts the President from His Policy Toward
Traitors — The President's Proclamation of Amnesty and Pardon — He
Appoints Provisional Governors for the Seceded States — His Letter to
Gov. William L. Sharkey [Miss.] — Constitutional Conventions of South
ern States — Their Domination by ex-Secessionists — Acts of State Legis
latures Nullify Xlllth Amendment — Eeport of Congressional Committee
(William P. Fessenden, Chairman) on Acts of These Conventions and
Legislatures — Opposition by the Country and Congress to Executive
Eeconstruction — Reports of Gen. Carl Schurz and Lieut.-Gen. Ulysses
S. Grant on Political Conditions in the South — Address of Schuyler
Coif ax [Ind.] on His Election as Speaker of the House of Representa
tives — Privileges of the Floor Refused to Claimants of Seats in the
House — Thacldeus Stevens [Pa.] Moves Appointment of Joint Com
mittee to Investigate Political Conditions in the South — Senate Tables
Credentials of Mississippi Claimants — Charles Sumner [Mass.] Intro
duces Resolutions Exacting Guaranties from States Applying for
Restoration to the Union — First Annual Message of President Johnson:
It Treats of Restoration of Rebel States to the Union and Protection
for the Freedmen — John W. Farnsworth [111.] Introduces in the House
Resolutions Opposed to the President 's Reconstruction Policy — Ap
pointment of Joint Committee (Senate and House) to Investigate
Political Conditions in the South — Debate in the Senate: in Favor of
Appointing the Committee: Jacob M. Howard [Mich.], William P.
Fessenden [Me.]; Opposed, James R. Doolittle [Wis.], Willard Sauls-
bury [Del.], James Guthrie [Ky.] — Henry Wilson [Mass.] Introduces
in the Senate Bill to Nullify Laws of Lately Rebellious States Discrim
inating against the Civil Rights of the Negro — Debate: in Favor of
the Bill, Sen. Wilson, Charles Sumner [Mass.] ; Opposed, Reverdy John
son [Md.], Sen. Saulsbury, Edgar Cowan [Pa.].
UPON his accession as President (April 15, 1865)
Andrew Johnson answered the general and nat
ural inquiry as to what would be his policy by
saying:
269
270 GREAT AMERICAN DEBATES
"I have to say that my policy must be left for development
as the Administration progresses. The message of the declara
tion must be made by the acts as they transpire. The only as
surance I can now give of the future is by reference to the
past."
Three days later (April 18), while the body of Lin
coln still lay in the White House, an Illinois delegation
headed by Gov. Eichard J. Oglesby paid the new Presi
dent their respects.
James G. Elaine, in his "Twenty Years of Con
gress, " has given an account of Johnson's speech in
reply :
He spoke with profound emotion of the tragical termina
tion of Mr. Lincoln 's life : ' ' The beloved of all hearts has been
assassinated." Pausing thoughtfully, he added, "And when
we trace this crime to its cause, when we remember the source
whence the assassin drew his inspiration, and then look at the
result, we stand yet more astounded at this most barbarous,
most diabolical act. We can trace its cause through successive
steps back to that source which is the spring of all our woes.
No one can say that, if the perpetrator of this fiendish deed be
arrested, he should not undergo the extremest penalty of the
law known for crime: none will say that mercy should inter
pose. But is he alone guilty? Here, gentlemen, you perhaps
expect me to present some indication of my future policy. One
thing I will say: every era teaches its lesson. The times we
live in are not without instruction. The American people must
be taught — if they do not already feel — that treason is a crime
and must be punished. The Government must be strong not
only to protect but to punish. When we turn to the criminal
code we find arson laid down as a crime with its appropriate
penalty. We find theft and murder denounced as crimes, and
their appropriate penalties prescribed; and there, too, we find
the last and highest of crimes — treason. The people must un
derstand that treason is the blackest of crimes and will surely
be punished. Let it be engraven on every mind that treason
is a crime, and traitors shall suffer its penalty. I do not har
bor bitter or resentful feelings toward any. When the ques
tion of exercising mercy comes before me it will be considered
calmly, judicially — remembering that I am the Executive of the
nation. I know men love to have their names spoken of in con-
EXECUTIVE RECONSTRUCTION
271
nection with acts of mercy, and how easy it is to yield to that
impulse. But we must never forget that what may be mercy
to the individual is cruelty to the state."
The President spoke in similar vein to other delega
tions. To a representative body of Southern loyalists
who had been driven to the North he repeated his views
with great earnestness and deep feeling:
CAPTURE OF JEFFERSON DAVIS
From the collection of the New York Historical Society
"It is hardly necessary for me on this occasion to declare
that my sympathies and impulses in connection with this nefari
ous rebellion beat in unison with yours. Those who have passed
through this bitter ordeal and who participated in it to a great
extent are more competent, as I think, to judge and determine
the true policy that should be pursued. I know how to appre
ciate the condition of being driven from one's home. I can sym
pathize with him whose all has been taken from him : I can sym
pathize with him who has been driven from the place that gave
his children birth.
"/ have become satisfied that mercy without justice is a
crime. The time has come when the people should be taught to
understand the length and breadth, the height and depth of the
crime of treason. One who has become distinguished in the re
bellion says that 'when traitors become numerous enough trea-
272 GREAT AMERICAN DEBATES
son becomes respectable, and to become a traitor is to constitute
a portion of the aristocracy of the country.' God protect the
American people against such an aristocracy! When the Gov
ernment of the United States shall ascertain who are the con
scious and intelligent traitors the penalty and the forfeit should
be paid."
To a Pennsylvania delegation headed by ex-Secre
tary Simon Cameron he said :
* * There has been an effort since this rebellion began to make
the impression that it was a mere political struggle, or, as I see
it thrown out in some of the papers, a struggle for the as
cendency of certain principles from the dawn of the govern
ment to the present time, and now settled by the final triumph of
the Federal arms. If this is admitted, the Government is at an
end ; for no question can arise but they will make it a party is
sue, and then to whatever length they carry it the party defeated
will be only a party defeated, with no crime attaching thereto.
But I say treason is a crime, the very highest crime known to the
law, and there are men who ought to suffer the penalty of their
treason! ... To the unconscious, the deceived, the con
scripted, in short, to the great mass of the misled, I would say
mercy, clemency, reconciliation, and the restoration of their
government. But to those who have deceived, to the conscious/
intelligent, influential traitor who attempted to destroy the life
of a nation, I would say, on you be inflicted the severest penal
ties of your crime. "
The President inherited the Cabinet of his prede
cessor :
William H. Seward [N. Y.], Secretary of State.
Hugh McCulloch [Ind.], Secretary of the Treasury.
Edwin M. Stanton [0.], Secretary of War.
Gideon Welles [Conn.], Secretary of the Navy.
James Harlan [la.], Secretary of the Interior.
William Dennison [0.], Postmaster-General.
James Speed [Ky.], Attorney-General.
McCulloch, Welles, and Speed favored a conserva
tive plan of reconstruction; Stanton, Harlan, and Den
nison a radical plan.
Seward 's position was in doubt. It was not until May
1 that he had recovered sufficientlv from the murderous
EXECUTIVE RECONSTRUCTION 273
assault upon him by Lewis Payne Powell to be informed
of public affairs. By the 10th of the month he was well
enough to confer with the President, and by the 20th
he returned to his duties in his department.
In his conference with the President, Seward, who,
more than any living man with the possible exception
of Charles Sumner, had cause to hate the South, inclined
to mercy toward that section. Says Mr. Elaine: "He
was firmly persuaded that the wisest plan of reconstruc
tion was the one which would be speediest; that for the
sake of impressing the world with the strength and the
marvelous power of self-government, with its law, its
order, its peace, we should at the earliest possible mo
ment have every State restored to its normal relations
with the Union. He did not believe that guaranty of
any kind beyond an oath of renewed loyalty was need
ful. He was willing to place implicit faith in the coer
cive power of self-interest operating upon the men lately
in rebellion. He agreed neither with the President's
proclaimed policy of blood, nor with that held by the
vast majority of his own political associates, which,
avoiding the rigor of personal punishment, sought by
exclusion from political honor and emolument to ad
minister wholesome discipline to the men who had
brought peril to the Government and suffering to the
people. He believed, moreover, that the legislation
which should affect the South, now that peace had re
turned, should be shared by representatives of that sec
tion, and that, as such participation must at last come
if we were to have a restored republic, the wisest policy
was to concede it at once, and not nurture by delay a
new form of discontent and induce by withholding con
fidence a new phase of distrust and disobedience among
the Southern people."
Secretary Seward 's views made a strong impression
on the President, indeed, so completely won him from
his former views that he was ready to proclaim a policy
of reconstruction without attempting the indictment of
even one traitor or issuing a warrant for the arrest of
a single participant in the Rebellion aside from those
VII— 18
274 GREAT AMERICAN DEBATES
suspected of personal crime in connection with the noted
conspiracy of assassination.
Leading men of the South, seeing this change of tem
per in the President, helped to fix it. Dropping their
former contemptuous attitude toward him and cultivat
ing his friendship they applauded his consistent adher
ence to the Democratic theory that the rights of a State
were inherent and inalienable.
On May 29 two decisive steps were taken in the work
of reconstruction. Both steps proceeded on the theory
that every act needful for the rehabilitation of the se
ceded States could be accomplished by the Executive
"MY POLICY" [SEWARD'S] IN 1868 — AND THE "DEAD DUCK" STILL LIVES
From the collection of the New York Historical Society
Department of the Government. This was known to be
the favorite doctrine of Mr. Seward, and the President
readily acquiesced in its correctness. Mr. Seward had
no difficulty in persuading him that he possessed, as
President, every power needful to accomplish the com
plete reconstruction of the rebellious States.
The first of these important acts was a proclamation
of amnesty and pardon to "all persons who have di
rectly or indirectly participated in the existing Rebel
lion" upon the condition that such persons should take
EXECUTIVE RECONSTRUCTION 275
an oath declaring that henceforth they would ' ' faithfully
support, protect, and defend the Constitution of the
United States and the union of the States thereunder/*
and that they would also " abide by and faithfully sup
port all laws and proclamations which have been made
during the existing Rebellion, with reference to the
emancipation of slaves. "
Certain classes were exempted from the benefits of
amnesty: (1) Confederate diplomatists and foreign
agents; (2) those who had left offices in the Federal ju
diciary to engage in the Rebellion; (3) officers in the
Confederate army above the rank of colonel; (4) those
who had left seats in Congress to join the Rebellion;
(5) those who had resigned from the Federal army to
join the Rebellion; (6) those who had maltreated pris
oners in contravention of the laws of war (this was
aimed at those who had abused negro prisoners) ; (7)
absentees from the United States for the purpose of
aiding the Rebellion (this was aimed at certain persons
going over the Canadian border and concocting schemes
for burning Northern cities, introducing infectious dis
eases in the loyal States, etc.) ; (8) Rebel officers who
were West Point graduates; (9) Confederate State gov
ernors; (10) citizens of loyal States who had left these
to aid the Rebellion; (11) those who had been engaged
in destroying commerce on the high seas and Great
Lakes; (12) prisoners of war still in custody for of
fences against the Government; (13) rebels owning tax
able property over $20,000 in value (discrimination be
tween rich and poor rebels was insisted on by the Presi
dent and prevailed against the opposition of Seward,
who assented to it only on the prospect that few men
were left in the Confederacy who possessed the wealth
mentioned).
This proclamation was much like that issued by
President Lincoln on December 8, 1863, with the saving
exception of a proviso which invited individuals of the
excluded classes to apply for clemency to the President
and virtually assured them of pardon except in cases
of aggravated guilt.
276 GREAT AMERICAN DEBATES
Within nine months after the proclamation about
14,000 pardons were sought for and granted.
The second act looking toward the restoration of the
South to its national rights was an executive procla
mation appointing William W. Holden provisional gov
ernor of North Carolina and authorizing him to call a
State convention "to present such a republican form
of State government as will entitle the State to the
guaranty of the United States therefor and its people
against invasion, insurrections, and domestic violence."
It was specially provided in the proclamation that in
"choosing delegates to any State convention no person
shall be qualified as an elector or eligible as a member
unless he shall have previously taken the prescribed oath
of allegiance, and unless he shall also possess the quali
fications of a voter as defined under the constitution
and laws of North Carolina as they existed on the 20th
of May, 1861, immediately prior to the so-called ordi
nance of secession." Says Mr. Elaine: "Mr. Lincoln
had in mind, as was shown by his letter to Governor
Hahn of Louisiana, to try the experiment of negro suf
frage, beginning with those who had served in the Union
army and who could read and write; but President
Johnson's plan confined the suffrage to white men, by
prescribing the same qualifications as were required in
North Carolina before the war."
The President directed all the departments of the
Federal Government to reestablish their functions in the
State, and this was done.
On June 13 Mississippi was treated in the same man
ner as North Carolina, William L. Sharkey being ap
pointed Provisional Governor. On June 17 this treat
ment was accorded to Georgia (James Johnson, Pro
visional Governor), and to Texas (Andrew J. Hamilton,
Provisional Governor) ; on June 21, Alabama (Lewis E.
Parsons) ; on June 30, South Carolina (Benjamin F.
Perry), and on July 13, Florida (William Marvin), com
pleting the list of States in which loyal governments
had not been formed during Lincoln's administration.
This plan rendered it possible, and indeed certain,
EXECUTIVE RECONSTRUCTION 277
that State officers would be chosen for the permanent
organization of the States who had not taken oath of
allegiance to the Federal Government. Accordingly it
met at once with great opposition among the people and
their representatives in Congress. These said that it
would hand over all the State governments to the very
traitors who had instigated the Kebellion, and that the
negroes, being deprived of the elective franchise, would
not be able to maintain their freedom. The latter senti
ment wrought on the President so powerfully that,
against his own wish, he was compelled to address a
circular to his provisional governors, suggesting that
the elective franchise should be extended to all persons
of color "who can read the Constitution of the United
States and write their names, and also to those who own
real estate valued at not less than two hundred and
fifty dollars and pay taxes thereon. "
In writing to Governor Sharkey of Mississippi in re
lation to this subject the President argued that his
recommendations touching colored suffrage could be
adopted "with perfect safety, " and that thereby "the
Southern States would be placed, with reference to free
persons of color, upon the same basis with the free
States. " That Mr. Johnson, says Mr. Elaine, made this
recommendation simply from policy and not from any
proper conception of its inherent justice is indicated by
the closing paragraph in his letter to Governor Sharkey.
Indeed, by imprudent language the President made an
unnecessary exposure of the character of his motives,
and deprived himself of much of the credit which might
otherwise have belonged to him. "I hope and trust, "
he wrote to his Mississippi governor, "that your con
vention will do this, and as a consequence the Eadicals,
who are wild upon negro franchise, will be completely
foiled in their attempt to keep the Southern States from
renewing their relations to the Union by not accepting
their Senators and Representatives."
The whole scheme of reconstruction, as originated
by Mr. Seward and adopted by the President, was in
operation by the middle of July. The rapid and thor-
278 GREAT AMERICAN DEBATES
ough change in the President's position was clearly dis
cerned by the people. His course of procedure was di
viding the Republican party and already encouraging
the hopes of those in the North who had been the steady
opponents of Mr. Lincoln's war policy, and of those in
the South who had sought for four years to destroy the
republic. It soon became evident that the Northern
Democrats who had been opposed to the war, and the
Southern Democrats who had been defeated in the war,
would unite in political action. Public interest was
therefore transferred for the time from the acts of the
President at the national capital to the acts of the recon
struction conventions about to assemble in the South.
RECONSTRUCTION CONVENTIONS IN THE SOUTH
Every convention called in the South to reconstruct
the State governments assumed that the old State con-
situtions were in full force, and proceeded to amend
these only so far as, in their opinion, it was necessary
to secure their recognition by the Federal Government.
In not one instance did they submit for ratification these
constitutions to the people of the States which were
affected, but, assuming their adoption, at once ordered
the election of Representatives in Congress. These elec
tions were dominated by former secessionists, with the
result that men of this class, with few exceptions, were
chosen to enter the halls of the national legislature.
Upon this action a joint committee of Congress (Wil
liam P. Fessenden, of Maine, chairman) subsequently
commented as follows :
' * Hardly is the war closed before the people of the insurrec
tionary States come forward and haughtily claim, as a right,
the privilege of participating at once in that Government which
they have for four years been fighting to overthrow. Allowed
and encouraged by the Executive to organize State govern
ments, they at once placed in power leading rebels, unrepent
ant and unpardoned, excluding with contempt those who had
manifested an attachment to the Union, and preferring in many
EXECUTIVE RECONSTRUCTION 279
instances those who had rendered themselves peculiarly obnox
ious. In the face of the law requiring an oath that would neces
sarily exclude all such men from Federal offices, they have
elected, with very few exceptions, as Senators and Representa
tives in Congress, the very men who have actively participated
in the rebellion, insultingly denouncing the law as unconstitu
tional. "
The oath referred to in the committee's report is
that popularly known as the "Ironclad oath," pre
scribed by the Act of July 2, 1862, to be taken by every
person elected or appointed to any office of honor or
profit under the Government of the United States, the
President alone excepted. The officer before entering
upon his duties was compelled to swear that he had
"never voluntarily borne arms against the United
States"; that he had "voluntarily given no aid, coun
tenance, counsel, or encouragement to persons engaged
in armed hostility to the National Government"; that
he had "neither sought nor accepted nor attempted to
exercise the functions of any office whatever under au
thority or pretended authority in hostility to the United
States"; that he had "never yielded a voluntary sup
port to any pretended government within the United
States, hostile or inimical thereto."
Nevertheless former secessionists, such as Alexan
der H. Stephens, sought election to the Senate and
House, boasting that they would prove the unconstitu
tionally of the Ironclad oath and demand their seats.
Mr. Stephens secured an election to the Senate and
was present in Washington at the ensuing session of
Congress, asking admission to a seat, says Mr. Elaine,
as coolly as if every living man had forgotten that for
four years he had been exerting his utmost effort to
destroy the Constitution under which he now claimed
the full rights of a citizen. Mr. Stephens even went so
far as to point out to the loyal men in Congress how
they were depriving him of his rights by demanding an
oath of loyalty and good faith as the condition on which
he should be entitled to take part in legislating for the
restored Union.
280 GREAT AMERICAN DEBATES
Accordingly the same committee declared further
that:
"Professing no repentance, glorying apparently in the
crime they had committed, avowing still, as the uncontradicted
testimony of Mr. Stephens and many others proves, an adher
ence to the pernicious doctrine of secession, and declaring that
they yielded only to necessity, these men insist with unanimous
voice upon their rights as States, and proclaim that they will
submit to no conditions whatever as preliminary to their re
sumption of power under that Constitution which they still
claim the right to repudiate."
The report of the Congressional Committee further
stated that:
"The Southern press, with few exceptions, abounds with
weekly and daily abuse of the institutions and people of the
loyal States; defends the men who led,' and the principles which
incited, the rebellion; denounces and reviles Southern men who
adhered to the Union; and strives constantly and unscrupu
lously, by every means in its power, to keep alive the fire and
hate and discord between the sections; calling upon the Presi
dent to violate his oath of office, overturn the Government by
force of arms, and drive the representatives of the people from
their seats in Congress. The national banner is openly in
sulted and the national airs scoffed at, not only by an ignorant
populace, but at public meetings. In one State [Virginia] the
leading general of the rebel armies [Robert E. Lee] is openly
nominated for governor by the House of Delegates, and the
nomination is hailed by the people with shouts of satisfaction
and openly indorsed by the press. ' '
The committee averred that:
"Witnesses of the highest character testify that, without the
protection of United States troops, Union men, whether of
Northern or Southern origin, would be obliged to abandon their
homes. The feeling in many portions of the country toward
the emancipated slaves, especially among the ignorant and un
educated, is one of vindictive and malicious hatred. The deep-
seated prejudice against color is assiduously cultivated by the
public journals and leads to acts of cruelty, oppression, and
murder, which the local authorities are at no pains to prevent
or punish."
EXECUTIVE RECONSTRUCTION 281
It was further declared by the committee:
"That the evidence of an intense hostility to the Federal
Union, and an equally intense love for the late Confederacy,
nurtured by the war, is decisive. While it appears that nearly
all are willing to submit, at least for the time being, to the Fed
eral authority, it is equally clear that the ruling motive is a
desire to obtain the advantages which will be derived from a
representation in Congress. "
It was also proved before the committee, on the ad
missions of witnesses who had been prominent in the
Rebellion, that "the generally prevailing opinion in the
late Confederacy defends the legal right of secession and
upholds the doctrine that the first allegiance of the peo
ple is due to the States and not to the United States."
It was further admitted by the same class of witnesses
that "the taxes levied by the United States will be paid
only on compulsion and with great reluctance, ' ' and
that "the people of the rebellious States would, if they
could see a prospect of success, repudiate the national
debt. ' ' It was stated by witnesses from the South, with
evident pride, that "officers of the Union army, on duty
in the South, and Northern men who go there to engage
in business, are generally detested and proscribed, ' ' and
that "Southern men who adhered to the Union are bit
terly hated and relentlessly persecuted."
When the Southern legislatures assembled they
passed laws practically nullifying the Thirteenth Amend
ment. Says Mr. Elaine: Both in the civil and crim
inal code the treatment of the negro was different from
that to which the white man was subjected. He was
compelled to work under a series of labor laws applica
ble only to his own race. The laws of vagrancy were
so changed as, in many of their provisions, to apply only
to him, and under their operation all freedom of move
ment and transit was denied. The liberty to sell his
time at a fair market rate was destroyed by the inter
position of apprentice laws. Avenues of usefulness and
skill in which he might specially excel were closed
against him lest he should compete with white men.
282 GREAT AMERICAN DEBATES
The attitude of the South caused a great advance
in radical sentiment at the North. Men who had hither
to been unwilling to accord the elective franchise to
the negro even in their own States began to believe that
the grant of this throughout the Union was the only
safeguard that could be given to save him from being
practically remanded to slavery. This opinion of the
people was reflected in the views of their national rep
resentatives, and observers of the signs of the times
prophesied that the President's plan of reconstruction,
under which the Southern States had perpetrated their
acts, would be overturned at the coming session of Con
gress.
INVESTIGATIONS OF SOUTHERN CONDITIONS
During the summer of 1865 the President commis
sioned General Carl Schurz to travel through the South
investigating political conditions in order to see if there
was warrant to reestablish governments of the States
lately in rebellion. General Schurz started on his mis
sion early in July and was engaged upon it until the
middle of autumn, traveling through South Carolina,
Georgia, Alabama, Mississippi, Louisiana, and Texas.
His conclusions as summarized by Mr. Elaine were as
follows :
The loyalty of the masses and of most of the leaders
of the South "consists in submission to necessity." Ex
cept in individual instances there is "an entire absence
of that national spirit which forms the basis of true
loyalty and patriotism.
* ' The emancipation of the slaves is submitted to only
in so far as chattel slavery in the old form could not
be kept up; and, although the freedman is no longer
considered the property of the individual master, he is
considered the slave of society, and all independent
State legislation will share the tendency to make him
such. The ordinances abolishing slavery, passed by the
conventions under the pressure of circumstances, will
not be looked upon as barring the establishment of a
new form of servitude. Practical attempts," Mr.
EXECUTIVE RECONSTRUCTION 283
Schurz continued, "on the part of the Southern people
to deprive the negro of his rights as a freedman may
result in bloody collision, and will certainly plunge
Southern society into resistless fluctuations and anar
chical confusion. "
These evils, in the opinion of Mr. Schurz, "can be
prevented only by continuing the control of the National
Government in the States lately in rebellion until free
labor is fully developed and firmly established. This
desirable result will be hastened by a firm declaration
on the part of the Government that national control in
the South will not cease until such results are secured."
It was Mr. Schurz 9s judgment that "it will hardly be
possible to secure the freedman against oppressive legis
lation and private persecution unless he be endowed with
a certain measure of political power." He felt sure
of the fact that, the "extension of the franchise to the
colored people upon the development of free labor and
upon the security of human rights in the South being
the principal object in view, the objections raised upon
the ground of the ignorance of the freedmen become un
important. ' '
Mr. Schurz made an intelligent argument in favor of
negro suffrage. He was persuaded that the Southern
people would never grant suffrage to the negro volun
tarily, and that ' * the only manner in which the Southern
people can be induced to grant to the freedmen some
measure of self -protecting power, in the form of suffrage,
is to make it a condition precedent to readmission."
He remarked upon the extraordinary delusion then per
vading a portion of the public mind regarding the de
portation of the freedmen. "The South," he said,
stands in need of an increase and not a diminution of its
laboring force to repair the losses and disasters of the
last four years. Much is said of importing European
laborers and Northern men. This is the favorite idea
among planters who want such emigrants to work on
their plantations, but they forget that European and
Northern men will not come to the South to serve as
hired hands on the plantations, but to acquire property
284 GREAT AMERICAN DEBATES
for themselves ; and even if the whole European emigra
tion, at the rate of two hundred thousand a year, were
turned into the South, leaving not a single man for the
North and West, it would require between fifteen and
twenty years to fill the vacuum caused by the deporta
tion of freedmen."
Mr. Schurz desired not to be understood as saying
that "there are no well-meaning men among those who
are compromised in the Rebellion. There are many, but
neither their number nor their influence is strong enough
to control the manifest tendency of the popular spirit."
Apprehending that his report might be antagonized by
evidence of a contrary spirit shown in the South by the
action of their conventions, Mr. Schurz declared that
it was "dangerous to be led by such evidence into any
delusions. As to the motives," said Mr. Schurz, "upon
which the Southern people acted when abolishing
slavery (in their conventions) and their understanding
of the bearings of such acts, we may safely accept the
standard they have set up for themselves." The only
argument of justification was that "they found them
selves in a situation where they could do no better."
A prominent Mississippian (General W. L. Brandon)
said in a public card, according to Mr. Schurz, "My
honest conviction is that we must accept the situation
until we can once more get control of our own State af
fairs ... I must submit for the time to evils I
cannot remedy." Mr. Schurz expressed his conviction
that General Brandon had "only put in print what a
majority of the people say in more emphatic language."
By the time General Schurz 's report reached him (in
November, 1865) the President had gone too far in his
reconstruction policy to recede from it. Accordingly
he secured a report upon the same points from Lieut-
Gen. Ulysses S. Grant, who had just completed a very
brief tour of military inspection through a number of
the States covered by General Schurz. General Grant 's
report was brief but positive ; he declared his belief that
"the mass of thinking men of the South accept the pres
ent situation of affairs in good faith." At the same
EXECUTIVE RECONSTRUCTION 285
time he thought that four years of war had left the
Southern people in a condition hardly to yield proper
obedience to civil authority, and he therefore recom
mended that small garrisons should be maintained
throughout the region "until such time as labor re
turns to its proper channels and civil authority is fully
established. "
He advised, however, that no negroes be stationed
in the garrisons, as their presence would demoralize
labor and cause their camps to be a resort of the freed-
men.
The white people, he said, were "anxious to return
to self-government within the Union as soon as pos
sible, " and were willing and anxious to receive protec
tion from the Government during the process of recon
struction. All they desired was not to be humiliated.
"The questions/' continued General Grant, "here
tofore dividing the people of the two sections — slavery
and the right of secession — the Southern men regard as
having been settled forever by the tribunal of arms,"
and some of the leading men regarded it as having been
fortunately settled for the whole country.
He advised that the Freedmen's Bureau be placed
under the officers of the various Southern military de
partments, for economy's sake and to secure uniform
and responsible action. His general comment on the
bureau was adverse — it tended to impress the freedman
with the idea that he would not be compelled to work
and that the lands of the former masters would be di
vided among their former slaves.
In the succeeding debates on reconstruction these
reports were drawn from the President by Congress;
that of General Schurz was quoted largely by the Oppo
sition, and that of General Grant by the Administration,
in support of the opposing contentions.
The new Congress (the Thirty-ninth) assembled on
December 4, 1865. Each chamber was Republican by a
large majority. Schuyler Coif ax [Ind.] was elected
Speaker of the House of Representatives. In accepting
the office he said:
286 GREAT AMERICAN DEBATES
SAFEGUAEDING CIVIL EIGHTS
SPEAKER GOLF AX
The duties of Congress are as obvious as the sun's pathway
in the heavens. Representing, in its two branches, the States
and the people, its first and highest obligation is to guarantee
to every State a republican form of government. The rebellion
having overthrown constitutional State governments in many
States, it is yours to mature and enact legislation which, with
the concurrence of the Executive, shall establish them anew on
such a basis of enduring justice as will guarantee all necessary
safeguards to the people, and afford, what our Magna Charta,
the Declaration of Independence, proclaims is the chief object of
government — protection to all men in their inalienable rights.
[Applause.] The world should witness, in this great work, the
most inflexible fidelity, the most earnest devotion, to the princi
ples of liberty and humanity, the truest patriotism, and the
wisest statesmanship.
Heroic men, by hundreds of thousands, have died that the
Republic might live. The emblems of mourning have darkened
White House and cabin alike. But the fires of civil war have
melted every fetter in the land, and proved the funeral pyre of
slavery. [Applause.] It is for you, Representatives, to do
your work as faithfully and as well as did the fearless saviors
of the Union on their more dangerous arena of duty. Then we
may hope to see the vacant and once abandoned seats around us
gradually filling up, until this hall shall contain Representa
tives from every State and district ; their hearts devoted to the
Union for which they are to legislate, jealous of its honor, proud
of its glory, watchful of its rights, and hostile to its enemies.
And the stars on our banner, that paled when the States they
represented arrayed themselves in arms against the nation, will
shine with a more brilliant light of loyalty than ever before.
No Senators nor Eepresentatives were seated at
this time from the formerly rebellious States, though
there were several claimants present. The feeling of
the House of Eepresentatives in this matter was clearly
shown by its refusal to vote on a resolution of William
E. Niblack [Ind.] according the claimants the customary
privileges of the floor.
Thaddeus Stevens [Pa.] moved that a joint com-
EXECUTIVE RECONSTRUCTION 287
mittee of fifteen be appointed, nine members from the
House and six from the Senate, to investigate the con
dition of the States formerly in secession and report
upon whether or not they were entitled to representa
tion in Congress. The resolution was received by the
House, but when presented next day in the Senate it
was ordered to lie over one day. Credentials were re
ceived in the Senate from William L. Sharkey and
James L. Alcorn, elected by the legislature of Missis
sippi, and were laid on the table.
On the same day Charles Sumner [Mass.] introduced
in the Senate resolutions significant of the gathering
opposition to the President's reconstruction policy.
These defined the duty of Congress in respect to guar
anties of the national security and national faith in the
rebel States. They declared that, in order to provide
proper guaranties for security in the future, "Congress
should take care that no one of the rebellious States
should be allowed to resume its relations to the Union
until after the satisfactory performance of five several
conditions, which must be submitted to a popular vote
and be sanctioned by a majority of the people in each
of those States respectively. "
Mr. Sumner demanded first "the complete reestab-
lishment of loyalty, as shown by an honest recognition
of the unity of the republic and the duty of allegiance
to it at all times without mental reservation or equivo
cation of any kind. How Mr. Sumner, says Mr. Elaine
in his "Twenty Years of Congress," could determine
that "the recognition of the unity of the republic " was
honest, how he could know whether there was not, after
all, a mental reservation on the part of the rebels now
swearing allegiance, he did not attempt to inform the
Senate. The second condition demanded "the complete
suppression of all oligarchical pretensions and the com
plete enfranchisement of all citizens, so that there shall
be no denial of rights on account of race or color." The
third condition was "the rejection of the rebel debt and
the adoption in just proportions of the national debt
and the national obligations to Union soldiers, with sol-
GREAT AMERICAN DEBATES
emn pledges never to join in any measure, directly or
indirectly, for their repudiation or in any way tending
to impair the national credit. " The fourth condition
was "the organization of an educational system for the
equal benefit of all, without distinction of color or race. ' '
The fifth had some of the objectionable features of his
first, demanding "the choice of citizens for office,
whether State or national, of constant and undoubted
loyalty, whose conduct and conversation shall give as
surance of peace and reconciliation. " The rebel States
were not to be, in Mr. Sumner's language, "precipitated
back to political power and independence, but must wait
until these conditions are, in all respects, fulfilled/' In
addition he desired a declaration of the Senate that
"the Thirteenth Amendment, abolishing' slavery, has
become and is a part of the Constitution of the United
States, having received the approval of the legislatures
of three-fourths of the States adhering to the Union. "
He declared that "the votes of the States in rebellion
are not necessary in any way to its adoption, but they
must all agree to it through their legislatures as a con
dition precedent to their restoration to their full rights
as members of the Union." With these resolutions Mr.
Sumner submitted another long series declaratory of the
duty of Congress in respect to loyal citizens in the rebel
States. His first series had defined what the lately re
bellious States must agree to by popular vote, and now
he outlined quite fully what would be the duty of Con
gress respecting the admission of those States to rep
resentation in the Senate and the House. The central
fact of the whole series was that the color of the skin
must not exclude a loyal man from civil rights.
On the next day (December 5) the two chambers met
to hear the first annual message of the President.
ADMIT THE STATES WITH CONDITIONAL GUAKANTIES
FIRST ANNUAL MESSAGE OF PRESIDENT JOHNSON
After deploring the assassination "by an act of par
ricidal treason" of his predecessor, whom he extolled
EXECUTIVE RECONSTRUCTION 289
as the savior of the Union and a statesman to whose
memory the whole world was rendering justice, he said
that the sad event had cast upon himself a "heavier
weight of cares than had ever devolved upon any one of
his (Lincoln's) predecessors, " and that he therefore
asked ' l the support and confidence ' ' of Congress and the
people.
The Union of the United States of America was intended by
its authors to last as long as the States themselves shall last.
"The Union shall be perpetual," are the words of the Con
federation. "To form a more perfect Union," by an ordinance
of the people of the United States, is the declared purpose of the
Constitution.
The Constitution contains within itself ample resources for
its own preservation. It has power to enforce the laws, punish
treason, and insure domestic tranquillity. In case of the usurpa
tion of the government of a State by one man, or an oligarchy,
it becomes a duty of the United States to make good the guar
anty to that State of a republican form of government, and so
to maintain the homogeneousness of all. Does the lapse of time
reveal defects ? A simple mode of amendment is provided in the
Constitution itself, so that its conditions can always be made to
conform to the requirements of advancing civilization. No room
is allowed even for the thought of a possibility of its coming to
an end. The Constitution is the work of "the people of the
United States," and it should be as indestructible as the people.
It is not strange that the framers of the Constitution, which
had no model in the past, should not have fully comprehended
the excellence of their own work. Fresh from a struggle against
arbitrary power, many patriots suffered from harassing fears of
an absorption of the State governments by the general Govern
ment, and many from a dread that the States would break
away from their orbits. But the very greatness of our country
should allay the apprehension of encroachments by the general
Government. The subjects that come unquestionably within its
jurisdiction are so numerous that it must ever naturally refuse
to be embarrassed by questions that lie beyond it. Were it
otherwise, the Executive would sink beneath the burden; the
channels of justice would be choked; legislation would be ob
structed by excess ; so that there is a greater temptation to exer
cise some of the functions of the general Government through
the States than to trespass on their rightful sphere. "The ab-
VII— 19
290 GREAT AMERICAN DEBATES
solute acquiescence in the decisions of the majority" was, at the
beginning of the century, enforced by Jefferson "as the vital
principle of republics, " and the events of the last four years
have established, we will hope forever, that there lies no appeal
to force.
The maintenance of the Union brings with it "the support
of the State governments in all their rights ' ' ; but it is not one
of the rights of any State government to renounce its own place
in the Union, or to nullify the laws of the Union. The largest
liberty is to be maintained in the discussion of the acts of the
Federal Government; but there is no appeal from its laws, ex
cept to the various branches of that Government itself, or to the
people, who grant to the members of the legislative and of the
executive departments no tenure but a limited one, and in that
manner always retain the powers of redress.
"The sovereignty of the States" is the language of the Con
federacy, and not the language of the Constitution. The latter
contains the emphatic words, "The Constitution, and the laws
of the United States which shall be made in pursuance thereof,
and all treaties made or which shall be made under the authority
of the United States, shall be the supreme law of the land ; and
the judges in every State shall be bound thereby, anything in
the constitution or laws of any State to the contrary notwith
standing. ' '
Certainly the Government of the United States is a limited
government ; and so is every State government a limited govern
ment. With us, this idea of limitation spreads through every
form of administration, general, State, and municipal, and rests
on the great distinguishing principle of the recognition of the
rights of man. The ancient republics absorbed the individual
in the state, prescribed his religion, and controlled his activity.
The American system rests on the assertion of the equal right
of every man to life, liberty, and the pursuit of happiness; to
freedom of conscience, to the culture and exercise of all his
faculties. As a consequence, the State government is limited, as
to the general Government in the interests of union, as to the
individual citizen in the interest of freedom.
States, with proper limitations of power, are essential to the
existence of the Constitution of the United States. At the very
commencement, when we assumed a place among the powers of
the earth, the Declaration of Independence was adopted by
States; so also were the Articles of Confederation; and when
"the people of the United States" ordained and established the
Constitution, it was the assent of the States, one by one, which
EXECUTIVE RECONSTRUCTION 291
gave it vitality. In the event, too, of any amendment to the
Constitution, the proposition of Congress needs the confirmation
of States. Without States, one great branch of the legislative
government would be wanting. And, if we look beyond the
letter of the Constitution to the character of our country, its ca
pacity for comprehending within its jurisdiction a vast conti
nental empire is due to the system of States. The best security
for the perpetual existence of the States is the "supreme au
thority ' ' of the Constitution of the United States. The perpetu
ity of the Constitution brings with it the perpetuity of the
States; their mutual relation makes us what we are, and in our
political system their connection is indissoluble. The whole can
not exist without the parts, nor the parts without the whole. So
long as the Constitution of the United States endures the States
will endure ; the destruction of the one is the destruction of the
other; the preservation of the one is the preservation of the
other.
I have thus explained my views of the mutual relations of
the Constitution and the States, because they unfold the princi
ples on which I have sought to solve the momentous questions
and overcome the appalling difficulties that met me at the very
commencement of my administration. It has been my steadfast
object to escape from the sway of momentary passions, and to
derive a healing policy from the fundamental and unchanging
principles of the Constitution.
I found the States suffering from the effects of a civil war.
Resistance to the general Government appeared to have ex
hausted itself. The United States had recovered possession of
their forts and arsenals; and their armies were in the occupa
tion of every State which had attempted to secede. Whether the
territory within the limits of those States should be held as con
quered territory, under military authority emanating from the
President as the head of the army, was the first question that
presented itself for decision.
Now, military governments, established for an indefinite
period, would have offered no security for the early suppression
of discontent ; would have divided the people into the vanquish
ers and the vanquished; and would have envenomed hatred,
rather than have restored affection. Once established, no precise
limit to their continuance was conceivable. They would have
occasioned an incalculable and exhausting expense. Peaceful
emigration to and from that portion of the country is one of the
best means that can be thought of for the restoration of har
mony ; and that emigration would have been prevented ; for what
292 GREAT AMERICAN DEBATES
emigrant from abroad, what industrious citizen at home, would
place himself willingly under military rule ? The chief persons
who would have followed in the train of the army would have
been dependents on the general Government, or men who ex
pected profit from the miseries of their erring fellow citizens.
The powers of patronage and rule which would have been exer
cised, under the President, over a vast and populous and natu
rally wealthy region are greater than, unless under extreme
necessity, I should be willing to intrust to any one man; they
are such as, for myself, I could never, unless on occasions of
great emergency, consent to exercise. The willful use of such
powers, if continued through a period of years, would have en
dangered the purity of the general administration and the liber
ties of the States which remained loyal.
Besides, the policy of military rule over a conquered ter
ritory would have implied that the States whose inhabitants
may have taken part in the rebellion had, by the act of those
inhabitants, ceased to exist. But the true theory is that all pre
tended acts of secession were, from the beginning, null and void.
The States cannot commit treason, nor screen the individual
citizens who may have committed treason, any more than they
can make valid treaties or engage in lawful commerce with any
foreign power. The States attempting to secede placed them
selves in a condition where their vitality was impaired, but not
extinguished — their functions suspended, but not destroyed.
But if any State neglects or refuses to perform its offices
there is the more need that the general Government should main
tain all its authority, and, as soon as practicable, resume the
exercise of all its functions. On this principle I have acted,
and have gradually and quietly, and by almost imperceptible
steps, sought to restore the rightful energy of the general Gov
ernment and of the States. To that end, provisional governors
have been appointed for the States, conventions called, govern
ors elected, legislatures assembled, and Senators and Represen
tatives chosen to the Congress of the United States. At the
same time the courts of the United States, as far as could be
done, have been reopened, so that the laws of the United States
may be enforced through their agency. The blockade has been
removed and the custom houses reestablished in ports of entry,
so that the revenue of the United States may be collected. The
Post- Office Department renews its ceaseless activity, and the
general Government is thereby enabled to communicate promptly
with its officers and agents. The courts bring security to per
sons and property; the opening of the ports invites the restora-
EXECUTIVE RECONSTRUCTION 293
tion of industry and commerce; the post-office renews the fa
cilities of social intercourse and of business. And is it not happy
for us all that the restoration of each one of these functions of
the general Government brings with it a blessing to the States
over which they are extended ? Is it not a sure promise of har
mony and renewed attachment to the Union that, after all that
has happened, the return of the general Government is known
only as a beneficence?
I know very well that this policy is attended with some risk ;
that for its success it requires at least the acquiescence of the
States which it concerns; that it implies an invitation to those
States, by renewing their allegiance to the United States, to re
sume their functions as States of the Union. But it is a risk
that must be taken ; in the choice of difficulties, it is the smallest
risk; and to diminish, and, if possible, to remove, all danger I
have felt it incumbent on me to assert one other power of the
general Government — the power of pardon. As no State can
throw a defence over the crime of treason, the power of par
don is exclusively vested in the executive Government of the
United States. In exercising that power I have taken every
precaution to connect it with the clearest recognition of the
binding force of the laws of the United States, and an unquali
fied acknowledgment of the great social change of condition in
regard to slavery which has grown out of the war.
The next step which I have taken to restore the constitu
tional relations of the States has been an invitation to them to
participate in the high office of amending the Constitution.
Every patriot must wish for a general amnesty at the earliest
epoch consistent with public safety. For this great end there
is need of a concurrence of all opinions, and the spirit of mu
tual conciliation. All parties in the late terrible conflict must
work together in harmony. It is not too much to ask, in the
name of the whole people, that, on the one side, the plan of
restoration shall proceed in conformity with a willingness to
cast the disorders of the past into oblivion; and that, on the
other, the evidence of sincerity in the future maintenance of
the Union shall be put beyond any doubt by the ratification
of the proposed amendment to the Constitution, which provides
for the abolition of slavery forever within the limits of our
country. So long as the adoption of this amendment is delayed,
so long will doubt and jealousy and uncertainty prevail. This
is the measure which will efface the sad memory of the past;
this is the measure which will most certainly call population
and capital and security to those parts of the Union that need
294 GREAT AMERICAN DEBATES
them most. Indeed, it is not too much to ask of the States
which are now resuming their places in the family of the Union
to give this pledge of perpetual loyalty and peace. Until it is
done, the past, however much we may desire it, will not be
forgotten. The adoption of the amendment reunites us beyond
all power of disruption. It heals the wound that is still im
perfectly closed; it removes slavery, the element which has so
long perplexed and divided the country; it makes of us once
more a united people, renewed and strengthened, bound more
than ever to mutual affection and support.
The amendment to the Constitution being adopted, it would
remain for the States, whose powers have been so long in abey
ance, to resume their places in the two branches of the national
legislature, and thereby complete the work of restoration. Here
it is for you, fellow citizens of the Senate, and for you, fellow
citizens of the House of Representatives, to judge, each of you
for yourselves, of the elections, returns, and qualifications of
your own members.
The full assertion of the powers of the general Government
requires the holding of circuit courts of the United States
within the districts where their authority has been interrupted.
In the present posture of our public affairs, strong objections
have been urged to holding those courts in any of the States
where the rebellion has existed; and it was ascertained by in
quiry that the circuit court of the United States would not be
held within the district of Virginia during the autumn or early
winter, nor until Congress should have "an opportunity to con
sider and act on the whole subject." To your deliberations the
restoration of this branch of the civil authority of the United
States is therefore necessarily referred, with the hope that early
provision will be made for the resumption of all its functions.
It is manifest that treason, most flagrant in its character, has
been committed. Persons who are charged with its commission
should have fair and impartial trials in the highest civil tribu
nals of the country, in order that the Constitution and the laws
may be fully vindicated; the truth clearly established and
affirmed that treason is a crime, that traitors should be pun
ished, and the offence made infamous; and, at the same time,
that the question may be judicially settled, finally and forever,
that no State of its own will has the right to renounce its place
in the Union.
The relations of the general Government toward the four
million inhabitants whom the war has called into freedom have
engaged my most serious consideration. On the propriety of
EXECUTIVE RECONSTRUCTION 295
attempting to make the freedmen electors by the proclamation
of the Executive, I took for my counsel the Constitution itself,
the interpretations of that instrument by its authors and their
contemporaries, and recent legislation by Congress. When, at
the first movement toward independence, the Congress of the
United States instructed the several States to institute govern
ments of their own, they left each State to decide for itself the
conditions for the enjoyment of the elective franchise. During
the period of the Confederacy there continued to exist a very
great diversity in the qualifications of electors in the several
States; and even within a State a distinction of qualifications
prevailed with regard to the officers who were to be chosen. The
Constitution of the United States recognizes these diversities
when it enjoins that, in the choice of members of the House of
Representatives of the United States, "the electors in each
State shall have the qualifications requisite for electors of the
most numerous branch of the State legislature. ' ' After the for
mation of the Constitution it remained, as before, the uniform
usage for each State to enlarge the body of its electors, accord
ing to its own judgment; and, under this system, one State
after another has proceeded to increase the number of its elec
tors, until now universal suffrage, or something very near it,
is the general rule. So fixed was this reservation of power in
the habits of the people, and so unquestioned has been the
interpretation of the Constitution, that during the Civil War
the late President never harbored the purpose — certainly never
avowed the purpose — of disregarding it; and in the acts of
Congress during that period nothing can be found which, dur
ing the continuance of hostilities, much less after their close,
would have sanctioned any departure by the Executive from
a policy which has so uniformly obtained. Moreover, a conces
sion of the elective franchise to the freedmen, by act of the
President of the United States, must have been extended to all
colored men, wherever found, and so much have established a
change of suffrage in the Northern, Middle, and Western States,
not less than in the Southern and Southwestern. Such an act
would have created a new class of voters, and would have been
an assumption of power by the President which nothing in the
Constitution or laws of the United States would have war
ranted.
On the other hand, every danger of conflict is avoided when
the settlement of the question is referred to the several States.
They can, each for itself, decide on the measure, and whether it
is to be adopted at once and absolutely or introduced gradually
296 GREAT AMERICAN DEBATES
and with conditions. In my judgment, the freedmen, if they
show patience and manly virtues, will sooner obtain a partici
pation in the elective franchise through the States than through
the general Government, even if it had power to intervene.
When the tumult of emotions that have been raised by the
suddenness of the social change shall have subsided it may
prove that they will receive the kindliest usage from some of
those on whom they have heretofore most closely depended.
But while I have no doubt that now, after the close of
the war, it is not competent for the general Government to
extend the elective franchise in the several States, it is equally
clear that good faith requires the security of the freedmen in
their liberty and their property, their right to labor, and their
right to claim the just return of their labor. I cannot too
strongly urge a dispassionate treatment of this subject, which
should be carefully kept aloof from all party strife. We must
equally avoid hasty assumptions of any natural impossibility
for the two races to live side by side, in a state of mutual bene
fit and good-will. The experiment involves us in no incon
sistency. Let us, then, go on and make that experiment in
good faith, and not be too easily disheartened. The country is
in need of labor, and the freedmen are in need of employment,
culture, and protection. While their right of voluntary mi
gration and expatriation is not to be questioned, I would not
advise their forced removal and colonization. Let us rather
encourage them to honorable and useful industry where it may
be beneficial to themselves and to the country; and, instead of
hasty anticipations of the certainty of failure, let there be noth
ing wanting to the fair trial of the experiment. The change in
their condition is the substitution of labor by contract for the
status of slavery. The freedman cannot fairly be accused of
unwillingness to work so long as a doubt remains about his free
dom of choice in his pursuits and the certainty of his recover
ing his stipulated wages. In this the interests of the employer
and the employed coincide. The employer desires in his work
men spirit and alacrity, and these can be permanently secured
in no other way. And if the one ought to be able to enforce
the contract, so ought the other. The public interest will be
best promoted if the several States will provide adequate pro
tection and remedies for the freedmen. Until this is in some
way accomplished there is no chance for the advantageous use
of their labor ; and the blame of ill success will not rest on them.
I know that sincere philanthropy is earnest for the imme
diate realization of its remotest aims; but time is always an
EXECUTIVE RECONSTRUCTION 297
element in reform. It is one of the greatest acts on record to
have brought four million people into freedom. The career of
free industry must be fairly opened to them; and then their
future prosperity and condition must, after all, rest mainly on
themselves. If they fail, and so perish away, let us be careful
that the failure shall not be attributable to any denial of jus
tice. In all that relates to the destiny of the freedman we
need not be too anxious to read the future; many incidents
which, from a speculative point of view, might raise alarm will
quietly settle themselves.
Opposition to the President's plan of reconstruction
was at once shown in extreme form by resolutions intro
duced in the House on December 6, 1865, by John F.
Farnsworth [111.].
Resolved (as the sense of this House), That, as all just powers of gov
ernment are derived from the consent of the governed, that cannot be re
garded as a just government which denies to a large portion of its citizens
[i.e., negroes], who share both its pecuniary and military burdens, tho
right to express either their consent or dissent to the laws which subject
them to taxation and to military duty, and which refuses them full pro
tection in the enjoyment of their inalienable rights.
Resolved, That, . . . while we have rewarded the foreigner, who is
ignorant of our language and institutions, and who has but just landed
upon our shores, with the right of citizenship for a brief service in the
armies of the United States, good faith, as well as impartial justice, de
mands of this Government that it secure to the colored soldiers of the
Union their equal rights and privileges as citizens of the United States.
Resolved, That we agree with the President of the United States that
"mercy without justice is a crime"; and the admitting of rebels and
traitors, upon whose hands the blood of slain patriots has scarcely dried,
and upon whose hearts is the damning crime of starving to death loyal
men taken as prisoners in battle, to the rights of citizenship and of suf
frage, while we deny those rights to the loyal black man, who fought for
the Union, and who fed and protected our starving soldiers, is a fit illus
tration of that truism.
Mr. Farnsworth demanded the previous question on
his resolutions, which was refused by a vote of the
House. These resolutions, together with a number of
others relating to conditions to be exacted of the States
lately in rebellion before they should be recognized as
members of the Union, were referred to the joint com
mittee of the House which had been appointed on Decem
ber 4, 1865.
298
GREAT AMERICAN DEBATES
1 ' PEACE ! ' '
Cartoon by Thomas Nast
ON THE JOINT COMMITTEE
DEBATE IN THE SENATE, DECEMBER 12, 1865
In the debate in the Senate on the appointment of
this committee the lines of division between the Admin
istration and the Opposition were clearly intimated.
Jacob M. Howard [Mich.] on December 12, wished
it to be definitely pledged that, until the committee re-
EXECUTIVE RECONSTRUCTION 299
ported, neither chamber would admit representatives
of the rebel States.
Sir, what is the present position and status of the rebel
States? In my judgment, they are simply conquered com
munities; subjugated by the arms of the United States — com
munities in which the right of self-government does not now
exist. We hold them, as we know well, as the world knows to
day, not by their own free will and consent as members of the
Union, but solely by virtue of our superior military power,
which is exerted to that effect throughout the length and breadth
of the rebel States. There is in those States no rightful author
ity, according to my view, at this time, but that of the United
States, and every political act, every governmental act exer
cised within their limits, must necessarily be exercised and per
formed under the sanction and by the will of the conqueror.
In short, sir, they are not to-day loyal States; their popu
lation are not willing to-day, if we are rightly informed, to
perform peaceably, quietly, and efficiently the duties which
pertain to the population of a State in the Union and of the
Union; and, for one, I cannot consent to recognize them, even
indirectly, as entitled to be represented in either House of Con
gress at this time.
James R. Doolittle [Wis.] opposed the appointment
of a special committee on the subject, which, he said,
since it involved constitutional matters, properly and
in accordance with the practice of the Senate, should
be referred to the Judiciary Committee. Passing by
the injustice of an unequal representation on the joint
committee, operating as it did against the Senate, he ob
jected on principle to any joint committee acting upon
the question.
Mr. President, I believe that under the Constitution, upon
all subjects of legislation but one, the two Houses are equal and
coordinate branches of Congress. That one relates to their rep
resentation in the bodies, to their membership, that which con
stitutes their existence, which is essential to their life and their
independence. That is confided to each House, and to each
House alone, to act for itself. One House can no more share it
with the other than it can share it with the Supreme Court or
with the President. It is a matter over which its jurisdiction
300 GREAT AMERICAN DEBATES
is exclusive of every other jurisdiction. It is a matter in which
its decisions, right or wrong, are absolute and without appeal.
Sir, in my opinion, the Senate of the United States cannot give
to a committee beyond its control this question of the represen
tation in this body without a loss of its self-respect, its dig
nity, its independence; without an abandonment of its consti
tutional duty and a surrender of its constitutional powers.
Mr. President, there is a still graver objection to this reso
lution as it stands. The provision that, ' ' until such report shall
have been made and finally acted on by Congress, no member
shall be received into either House from any of the so-called
Confederate States," is a provision which, by law, excludes
those eleven States from their representation in the Union. Sir,
pass that resolution as it stands, and let it receive the signa
ture of the President, and you have accomplished what the
rebellion could not accomplish, what the sacrifice of half a mil
lion men could not accomplish in warring against this Govern
ment — you have dissolved the Union by act of Congress.
The Senator from Michigan talks about the status of these
States. He may very properly raise the question whether they
have any legislatures that are capable of electing Senators to
this body. That is a question of fact to be considered ; but as
to whether they are States, and States still within the Union,
notwithstanding their civil form of government has been over
turned by the rebellion and their legislatures have been dis
organized — that they are still States in this Union is the most
sacred truth and the dearest truth to every American heart,
and it will be maintained by the American people against all
opposition, come from what quarter it may. Sir, the flag that
now floats on the top of this Capitol bears thirty-six stars.
Every star represents a State in this Union. I ask the Senator
from Michigan does that flag, as it floats there, speak the na
tion's truth to our people and to the world or it is a hypo
critical, flaunting lie? That flag has been borne at the head
of our conquering legions through the whole South, planted at
Vicksburg, planted at Columbia, Savannah, Charleston, Sum-
ter; the same old flag which came down before the rebellion
at Sumter was raised up again, and it still bore the same glori
ous stars; "not a star obscured," not one.
WILLIAM P. FESSENDEN. — Were not some of those stars ob
scured ?
MR. DOOLITTLE. — No, sir. These people have been disorgan
ized in their civil governments in consequence of the war ; the
rebels overturned civil government in the first place, and we
EXECUTIVE RECONSTRUCTION 301
entered with our armies and captured the rebellion; but did
that destroy the States? Not at all. We entered the States
to save them, not to destroy them. Our constitutional duty is
to save them, and save every one of them, and not to destroy
them. The guaranty in the Constitution is a guaranty to the
States, and to every one of the States, and the obligation that
rests upon us is to guarantee to South Carolina a republican
form of government as a State in this Union, and not as a
Territory. The doctrine of the territorial condition of these
States, that they are mere conquered, subjugated Territories, as
if we had conquered Canada or Mexico, will not stand argu
ment for a moment. It is utterly at war with the ground on
which we stand and have stood from the beginning. The
ground we occupied was this: that no State nor the people of
any State had any power to withdraw from the Union. They
could not do it peacefully; they undertook to do it by arms;
we crushed the attempt; we trampled their armies under our
feet; we captured the rebellion; the States are ours; and we
entered them to save and not to destroy.
The Senator then began to discuss the proceedings
of the House of Representatives, when he was reminded
by the president pro tern, of the Senate that such a dis
cussion was not within the rules of order. Senator Doo-
little then attained his object in parliamentary fashion
by discussing the proceedings of a recent anti-admin
istration caucus. Referring to its dominant spirit, not
in his capacity as a Representative in Congress but as
"a man known to history, " he said:
I refer to the Hon. Thaddeus Stevens. His history is
known to all men; and one thing we know of him certainly,
that he is most bitterly, uncompromisingly hostile to the policy
of the present Administration on the subject of reconstruction.
He goes with him who goes the farthest, holding that even the
State of Tennessee is an alien State at war with the United
States; and, if I am not misinformed, in the convention at
Baltimore which nominated Messrs. Lincoln and Johnson for
President and Vice-President, he objected to the nomination of
Andrew Johnson because he was an alien enemy! Sir, I have
seen nothing in the history of that gentleman to lead me to
suppose that he has in any respect changed his opinions, for it
is not long since we read a speech of his delivered in the State
302 GREAT AMERICAN DEBATES
of Pennsylvania, marked with his usual ability, with his great
boldness, with that cool assurance which sometimes almost rises
to the sublime, in which he proposed, if I do not mistake, al
most the entire and universal confiscation of the whole of the
Southern States.
The appointment of the joint committee, said Sen
ator Doolittle, was pressed through the caucus in "hot
haste" by Mr. Stevens, with the "cool tact and talent"
for which he is distinguished.
Who does not know that the leader of that assemblage did
not desire to wait, nor did he dare to wait, until the President
had spoken to the country in his annual message?
The Constitution of the United States requires the President
from time to time to give to Congress information of the state
of the Union. Who has any right to presume that the Presi
dent will not furnish the information which his constitutional
duty requires ? He has at his control all the agencies which are
necessary. There is the able Cabinet who surround him, with
all the officers appointed under them: the postmasters under
the Post-Office Department, the treasury agents under the
Treasury Department, and almost two hundred thousand men
under the control of the War Department in every part of this
"disaffected" region, who can bring to the President informa
tion from every quarter of all the transactions that exist there.
Sir, we are here claiming to be the friends of the late
lamented President, and the friends of him upon whom by his
death the responsibilities of power have fallen. We sided in
their election. They were nominated at Baltimore after the
great experiment of reconstruction had already begun. Mr.
Lincoln had already for months, for almost a year, been pur
suing substantially the same policy of reconstruction which has
since been followed by his successor. Andrew Johnson was
himself one of the agencies which had been employed by Mr.
Lincoln in the State of Tennessee in the hope of restoring civil
government there; and it was under these circumstances, not
with the approval of all men at Washington, but with the ap
proval of the great masses of the people of this country, that
Abraham Lincoln was renominated as President, and that An
drew Johnson was nominated to be Vice-President of the United
States, and they were triumphantly indorsed and sustained by
the people; and I tell Senators now, in my opinion — I speak
with all respect to other gentlemen — that the President of the
'"
-
EXECUTIVE RECONSTRUCTION 303
United States will be sustained, in the views which he takes in
his message, by the people of this country is as certain as the
revolutions of the earth; and it is our duty to act harmoni
ously with him, to sustain him, to hold up his hands, to
strengthen his heart, to speak to him words of faith, friend
ship, and courage.
Mr. President, I know that in all these Southern States
there are a thousand things to give us pain, sometimes alarm,
but, notwithstanding the bad appearance which from time to
time presents itself in the midst of that boiling caldron of
passion and excitement which the war has left still raging there,
the real progress which we have made has been most wonderful.
I say to you, Senators, it is my deliberate opinion that, if, when
we adjourned last spring, an angel from the skies could have
come down here and told us that at our meeting now our coun
try would be in so hopeful a condition as it is, we would not
have believed it; it would have been beyond our credence, be
yond our belief. I am one of those who look forward with
hope, for I believe God reigns and rules in the affairs of man
kind. I look beyond the excitement of the hour and all the
outbreaking passion which sometimes shows itself in the South,
which leads them to make enactments in their legislatures which
are disgraceful to themselves, and can never be sanctioned by
the people of this country, and also, in spite of all the excite
ment of the North, I behold the future full of confidence and
hope. We have only to come up like men, and stand as the
real friends of the country and the Administration, and give
to the policy of the President a fair and substantial trial, and all
will be well.
Senator Fessenden indignantly replied:
Talk about the Administration! Sir, we are a part of the
Administration, and a very important part of it. I have no
idea of abandoning the prerogatives, the rights, and the duties
of my position in favor of anybody, however that person or any
number of persons may desire it. In questions of such infinite
importance as this, involving the integrity and welfare of the
Republic in all future time, we are solemnly bound, and our
constituents will demand of us, that we examine them with
care and fidelity, and act on our own convictions, and not upon
the convictions of others.
I do not agree with the honorable Senator from Wisconsin
that by passing a simple resolution raising a committee of our
own body, and referring to it certain papers, if we conclude to
304 GREAT AMERICAN DEBATES
do so, we are infringing upon the rights of anybody or making
an intimation with regard to any policy that the President may
have seen fit to adopt and recommend to the country. Sir, I
trust there are no such things as exclusive friends of the Presi
dent among us, or gentlemen who desire to be so considered. I
am disposed and ready to support him to the best of my abil
ity, as every gentleman around me is, in good faith and with
kind feeling in all that he may desire that is consistent with
my views of duty to the country, giving him credit for inten
tions as good as mine, and with ability far greater, I am ready
to asseverate.
But, sir, I do not agree with the doctrine that, because a
certain line of policy has been adopted by one branch of the
Government, or certain views are entertained by one branch of
the Government, therefore, for that reason alone and none other,
that is to be tried, even if it is against my judgment ; and I do
not say that it is or is not. That is a question to be considered.
I have a great respect, not for myself, perhaps, but for the
position which I hold as a Senator of the United States; and
no measure of Government, no policy of the President or of the
head of a department, shall pass me, while I am a Senator, if
I know it, until I have examined it and given my assent to it;
not on account of the source from which it emanates, but on
account of its own intrinsic merits, and because I believe it will
result in the good of my country. We have just gone through
a state of war. While we were in it it became necessary all
around to do certain, things for which perhaps no strict war
rant will be found; contrary, at any rate, to previous experi
ence. That I admit most distinctly. Sir, I defended them from
the beginning. I laid down the principle that the man who,
placed in a position such as the President and other officers
occupied, would not, in a time of war, and when his country
was in peril, put his own reputation at hazard as readily as he
would anything else in order to do his duty was not fit for his
place. I upheld many things then that perhaps I would not
uphold now because they are not necessary. The time must
come when the Senate and House of Representatives, the Con
gress, must revert to its own original position.
Willard Saulsbury [Del.l opposed forming the joint
committee.
Sir, suppose this committee should report that those States
are not entitled to representation in this body, are you bound
EXECUTIVE RECONSTRUCTION 305
by their action? Is there not a higher law, the supreme law
of the land, which says, if they be States, that they shall each
be entitled to two Senators on this floor? And shall a report
of a joint committee of the two Houses override and overrule
the fundamental law of the land? Sir, it is dangerous as a
precedent, and I protest against it as a humble member of this
body. If they be not States, then the object avowed for which
the war was waged was false.
James Guthrie [Ky.] upheld the President's plan of
reconstruction.
I know it has been said that the President has no authority
to do these things. I read the Constitution and the laws of this
country differently. He is to ' ' take care that the laws be faith
fully executed"; he is to suppress insurrection and rebellion.
The power is put in his hands, and I do not see why, when he
marches into a rebel State, he has not authority to put down a
rebel government and put up a government that is friendly to
the United States, and in accordance with it ; I do not see why
he cannot do that while the war goes on, and I do not see why
he may not do it after the war is over. The people in those
States lie at the mercy of the nation. I see no usurpation in
what he has done, and, if the work is well done, I, for one,
am ready to accept it. Are we to send out a commission to see
what the men whom he has appointed have done? It is said
that they are not to be relied on; that they have been guilty
of treason, and we will not trust them. I hope that no such
ideas will prevail here. I think this will be a cold shock to
the warm feelings of the nation for restoration, for equal privi
leges and equal rights. They were in insurrection. We have
suppressed that insurrection. They are now States of the Union ;
and, if they come here according to the laws of the States, they
are entitled, in my judgment, to representation, and we have
no right to refuse it. They are in a minority, and they would
be in a minority even if they meant now what they felt when
they raised their arms against the Government; but they do
not, and, of those whom they will send here to represent them,
nineteen out of twenty — even some of those who took up arms
against us — will be just as loyal as any of us.
I really hope to see some one move a modification of the test
oath, so that those who have repented of their disloyalty may
not be excluded, for I really believe that a great many of those
who took up arms honestly and wished to carry out the doctrine
VII— 20
306 GREAT AMERICAN DEBATES
of secession, and who have succumbed under the force of our
arms and the great force of public opinion, can be trusted a
great deal more than those who did not fight at all.
The joint committee as proposed by the House was
then agreed upon by a vote of 33 to 11.
The members appointed upon the joint committee
were: Senate — William P. Fessenden [Me.], chairman;
James W. Grimes [la.], Ira Harris [N. Y.], Jacob M.
Howard [Mich.], George H. Williams [Ore.], Eepub-
licans, and Eeverdy Johnson [Md.], Democrat. House
of Eepresentatives — Thaddeus Stevens [Pa.], Elihu B.
Washburne [111.], Justin S. Morrill [Vt], John A.
Bingham [0.], Eoscoe Conkling [N. Y.], George S.
Boutwell [Mass.], Henry T. Blow [Mo.], Eepublicans,
and Andrew J. Eogers [N. J.], arid Henry Grider [Ky.],
Democrats.
On the following day (December 13) Henry Wilson
[Mass.] brought forward in the Senate the bill "to main
tain the freedom of the inhabitants in the States lately
in rebellion, " which he had introduced upon the first
day of the session. This declared null and void all
those present laws in force in these States which main
tained inequality in the rights of citizens, particularly
on account of race, and it prohibited the enactment of
such laws in the future. Any person violating the act
was to be punished by fine and imprisonment.
James G. Blaine, in his "Twenty Years of Con
gress/7 has summarized this debate as follows:
CIVIL EIGHTS
SENATE, DECEMBER 13-20, 1865
Senator Wilson declared that lie had "no desire to
say harsh things of the South nor of the men who have
been engaged in the Eebellion."
"I do not ask their property or their blood; I do not wish
to disgrace or degrade them ; but I do wish that they shall not
be permitted to disgrace, degrade, or oppress anybody else. 1
offer this bill as a measure of humanity, as a measure that the
EXECUTIVE RECONSTRUCTION
307
needs of that section of the country imperatively demand at
our hands. I believe that if it should pass it will receive the
sanction of nineteen-twentieths of the loyal people of the coun
try. Men may differ about the power or the expediency of giv
ing the right of suffrage to the negro; but how any humane,
FHIIAOELPAIA
OFFICE
UNClWMJTTl
OF? ICE
THE OLD NURSE AND HER FOUNDLING
Sumner [in 1872]. — Mr. Wilson, you must not turn away from this
child. . Greeley turns his back on me, and I look to you to take it under
your wing at Philadelphia. Will you?
From'the. collection of the New York Public Library
just, and Christian man can for a moment permit the laws that
are on the statute books of the Southern States, and the laws
now pending before their legislatures, to be executed upon men
whom we have declared to be free I cannot comprehend."
Reverdy Johnson [Md.] replied to Mr. Wilson in a
tone of apology for the laws complained of, but took
308 GREAT AMERICAN DEBATES
occasion to give his views of the status of the States
lately in rebellion.
"I have now, and I have had from the first, a very decided
opinion that they are States in the Union and that they never
could have been placed out of the Union without the consent of
their sister States. The insurrection terminated, the author
ity of the Government was thereby reinstated ; eo instanti1 they
were invested with all the rights belonging to them originally —
I mean as States. In my judgment our sole authority for the
acts which we have done during the last four years was the
authority communicated to Congress by the Constitution to sup
press insurrection. If the power can only be referred to that
clause, in my opinion, speaking, I repeat, with great deference
to the judgment of others, the moment the insurrection was
terminated there was no power whatever left in the Congress of
the United States over those States; and I am glad to see, if I
understand his message, that in the view I have just expressed
I have the concurrence of the President of the United States."
Charles Simmer [Mass.] sustained Senator Wilson's
bill in an elaborate argument delivered on the 20th of
December. He declared that Mr. Wilson's bill was sim
ply to maintain and carry out the Proclamation of
Emancipation. The pledge there given was that the
Executive Government of the United States, including
the military and naval authority thereof, would recog
nize and maintain the freedom of such persons.
"This pledge is without limitation in space or time. It
is as extended and as immortal as the Republic itself; to that
pledge we are solemnly bound ; wherever our flag floats, as long
as time endures, we must see that it is sacredly observed. The
performance of that pledge cannot be intrusted to another, least
of all to the old slave masters, embittered against their slaves.
It must be performed by the National Government. The power
that gave freedom must see that freedom is maintained.
"Three of England's greatest orators and statesmen, Burke,
Canning, and Brougham, at successive periods unite in declar
ing, from the experience of the British West Indies, that what
ever the slave masters undertook to do for their slaves was
always arrant trifling; that, whatever might be its plausible
J"In that instant."
EXECUTIVE RECONSTRUCTION 309
form, it always wanted the executive principle. More recently
the Emperor of Russia, in ordering the emancipation of the
serfs, declared that all previous efforts had failed because they
had been left to the spontaneous initiative of the proprietors.
I assume that we shall not leave to the old slave proprietors
the maintenance of that freedom to which we are pledged, and
thus break our own promise and sacrifice a race."
In concluding his speech Mr. Sumner referred to the
enormity of the wrongs against the freedmen as some
thing that made the blood curdle.
"In the name of God, let us protect them; insist upon
guaranties; pass the bill under consideration; pass any bill,
but do not let this crying injustice rage any longer. An aveng
ing God cannot sleep while such things find countenance. If
you are not ready to be the Moses of an oppressed people, do
not become their Pharaoh."
Willard Saulsbury [Del.] made a brief reply to Mr.
Sumner, not so much to argue the points put forward
by the Senator from Massachusetts, not so much to deny
the facts related by him or to discuss the principles
which he had presented, as to announce that "it can
be no longer disguised that there is in the party which
elected the President an opposition party to him. Noth
ing can be more antagonistic than the suggestions con
tained in his message and the speeches already made in
both Houses of Congress. " He adjured the President
to be true and faithful to the principles he had fore
shadowed, and pledged Mm "the support of two million
men in the States which have not been in revolt, and
who did not support him for his high office. ' '
Edgar Cowan [Pa.], one of the Republican Senators
who had indicated a purpose to sustain the President,
was evidently somewhat stunned by Mr. Sumner 's
speech. He treated the outrages of which Mr. Sumner
complained as exceptional instances of bad conduct on
the part of the Southern people. "One man out of ten
thousand, " said Mr. Cowan, "is brutal to a negro, and
that is paraded here as a type of the whole people of the
South; whereas nothing is said of the other nine thou-
310 GREAT AMERICAN DEBATES
sand nine hundred and ninety-nine men who treat the
negro well." Mr. Cowan 's argument was altogether
inapposite, for what Mr. Sumner and Mr. Wilson had
complained of was not the action of individual men
in the South, but of laws solemnly enacted by legisla
tures whose right to act had been recognized by the
Executive Department of the National Government and
which had indeed been organized in pursuance of the
President's reconstruction policy.
Senator Cowan moved to refer the bill to the Judi
ciary Committee, but no action was taken on the mo
tion. It was naturally considered unofficially by the
Select Committee of Fifteen.
CHAPTER X
RECONSTRUCTION BY CONGRESSIONAL AUTHORITY
Debate on Reconstruction in the House: in Favor of the Plan of the Pres
ident, William E. Finck [O.], Henry J. Raymond [N. Y.], George R.
Latham [W. Va.], Daniel E. Voorhees [Ind.] ; Opposed, Thaddeus
Stevens [Pa.], William D. Kelley [Pa.], William E. Niblack [Ind.],
John W. Farnsworth [111.], Thomas A. Jenckes [R. I.], John A. Bing-
ham [O.], Robert C. Schenck [O.], Rufus P. Spalding [O.], Samuel
Shellabarger [O.], Henry C. Deming [Conn.]; House Refuses to Vote
Its Confidence in the President's Plan.
WITHOUT waiting for the report of the special
committee Thaddeus Stevens [Pa.] formally
opened the debate upon reconstruction in the
House of Representatives on December 18, 1865. His
speech is thus summarized by James G. Elaine in his
"Twenty Years of Congress' ':
Mr. Stevens took the most radical and pronounced
ground touching the relation to the National Govern
ment of the States lately in rebellion. He contended
that "there are two provisions in the Constitution,
under one of which the case must fall." The Fourth
Article says that "new States may be admitted by the
Congress into this Union." "In my judgment," said
Mr. Stevens, "this is the controlling provision in this
case. Unless the law of nations is a dead letter, the
late war between the two acknowledged belligerents sev
ered their original contracts and broke all the ties that
bound them together. The future condition of the con
quered power depends on the will of the conqueror.
They must come in as new States or remain as conquered
provinces." This was the theory which Mr. Stevens
had steadily maintained from the beginning of the war,
and which he had asserted as frequently as opportu-
311
312 GREAT AMERICAN DEBATES
nity was given in the discussions of the House. He pro
ceeded to consider the probable alternative. ' ' Suppose, ' '
said he, "as some dreaming theorists imagine, that these
States have never been out of the Union, but have only
destroyed their State governments, so as to be incapable
of political action, then the fourth section of the Fourth
Article applies, which says, "The United States shall
guarantee to every State in this Union a republican form
of government/ But," added he, "who is the United
States? Not the judiciary, not the President; but the
sovereign power of the people, exercised through their
representatives in Congress, with the concurrence of
the Executive. It means political government — the con
current action of both branches of Congress and the
Executive." He intended his line of debate to be an at
tack, at the very beginning, upon the assumption of the
President in his attempt at reconstruction. "The sep
arate action of the President, or the Senate, or the
House, ' ' added Mr. Stevens, ' ' amounts to nothing, either
in admitting new States or guaranteeing republican
forms of government to lapsed or outlawed States.
Whence springs," asked he, "the preposterous idea
that any one of these, acting separately, can determine
the right of States to send Eepresentatives or Senators
to the Congress of the Union!"
Though many others had foreseen and appreciated
the danger, Mr. Stevens was the first to state in detail
the effect which might be produced by the manumission
of the slaves upon the congressional representation of
the Southern States. He pointed out the fact that by
counting negroes in the basis of representation the num
ber of Kepresentatives from the South would be eighty-
three; excluding negroes from the basis of representa
tion, they would be reduced to forty-six ; and so long as
negroes were deprived of suffrage he contended that
they should be excluded from the basis of representation.
"If," said he, "they should grant the right of suffrage
to persons of color, I think there would always be white
men enough in the South, aided by the blacks, to divide
representation and thus continue loyal ascendency. If
CONGRESSIONAL RECONSTRUCTION
313
they should refuse to thus alter their election laws it
would reduce the representation of the late slave States
and render them powerless for evil." Mr. Stevens' ob
vious theory at that time was not to touch the question
THE GREAT RECONSTRUCTION BALL
Those Who Get It Up and Those Who Invite Themselves to It
From the collection of the New York Public Library
of suffrage by national interposition, but to reach it more
effectively perhaps by excluding the entire colored pop
ulation from the basis of congressional representation,
until by the action of the Southern States themselves the
elective franchise should be conceded to the colored pop
ulation. As he proceeded in his speech Mr. Stevens
waxed warm with all his ancient fire on the slavery ques
tion. "We have," said he, "turned, or are about to turn,
loose four million slaves without a hut to shelter them or
a cent in their pockets. The diabolical laws of slavery
have prevented them from acquiring an education, under
standing the commonest laws of contract, or of man
aging the ordinary business of life. This Congress is
314 GREAT AMERICAN DEBATES
bound to look after them until they can take care of
themselves. If we do not hedge them around with pro
tecting laws, if we leave them to the legislation of their
old masters, we had better have left them in bondage.
Their condition will be worse than that of our prisoners
at Andersonville. If we fail in this great duty now when
we have the power, we shall deserve to receive the exe
cration of history and of all future ages."
In conclusion Mr. Stevens declared that * ' Two things
are of vital importance: first, to establish a principle
that none of the rebel States shall be counted in any of
the amendments to the Constitution until they are duly
admitted into the family of States by the law-making
power of their conqueror; second, it should now be sol
emnly decided what power can revive, recreate, and re
instate these provinces into the family of States and
invest them with the rights of American citizens. It is
time that Congress should assert its sovereignty and as
sume something of the dignity of a Eoman senate." He
denounced with great severity the cry that "This is a
white man's government." "If this republic," said he
with great earnestness, "is not now made to stand on
solid principle it has no honest foundation and the Father
of all men will shake it to its center. If we have not yet
been sufficiently scourged for our national sin to teach
us to do justice to all God's creatures, without distinc
tion of race or color, we must expect the still more heavy
vengeance of an offended Father, still increasing his
afflictions, as he increased the severity of the plagues of
Egypt until the tyrant consented to do justice, and when
that tyrant repented of his reluctant consent and at
tempted to reenslave the people, as our Southern tyrants
are attempting to do now, he filled the Ked Sea with
broken chariots and drowned horses, and strewed the
shores with the corpses of men. Sir, this doctrine of a
white man's government is as atrocious as the infamous
sentiment that damned the late Chief Justice to everlast
ing fame, and I fear to everlasting fire. ' '
The Administration, says Mr. Elaine, saw that the
speech of Mr. Stevens was the first gun fired in a deter-
CONGRESSIONAL RECONSTRUCTION 315
mined war to be waged against its policy and its pres
tige; it therefore determined upon as forcible a reply as
possible, and for this duty detailed a Eepublican sup
porter of the President, Henry J. Raymond, who, though
he now appeared for the first time in Congress, was one
of the most influential men in the country, having
founded and conducted the New York Times and taken
a prominent part in the anti-slavery agitation and the
formation and direction of the Republican party. As an
editor and polemical writer he had no peer but Horace
Greeley, of the New York Tribune, who was in opposition
to the President, and he had acquired force and facility
as a debater by distinguished service in the New York
legislature.
Mr. Raymond spoke on December 21. Unfortunately
for the effect, both moral and argumentative, of his
speech the floor was taken before him by a State Rights
Democrat of mediocre ability, William E. Finck [0.],
who had felt called upon to reply to Mr. Stevens.
Mr. Finck made a number of plausible points, though
none were very profound. He said that if Tennessee
were not a State within the Union, as Mr. Stevens had
insisted was the case, then Andrew Johnson, citizen of
Tennessee, was not eligible to hold the office of Presi
dent. Allegiance and protection being reciprocal duties,
by what right did we demand from the South the one
and refuse to it the other? What became of the doctrine
of equality when the white man was stripped of his po
litical rights in order to have these conferred upon the
negro? He wished to restore the Union to its true con
stitutional character, a confederated and not consoli
dated government.
Mr. Raymond clearly indicated at the beginning of
his speech that the Administration was not over-grateful
for the support of Democrats of the Vallandigham sort,
whom Mr. Finck represented.
I cannot help wishing, sir, that these indications of an in
terest in the preservation of our Government had come some
what sooner. If we could have had from that side of the
House such indications of an interest in the preservation of the
316 GREAT AMERICAN DEBATES
Union, such heartfelt sympathy with the efforts of the Govern
ment for the preservation of that Union, such hearty denuncia
tion of those who were seeking its destruction, while the war
was raging, I am sure we might have been spared some years
of war, some millions of money, and rivers of blood and tears.
Mr. Kaymond's principal aim was to join issue with
Mr. Stevens on his theory of dead States.
"The gentleman from Pennsylvania believes that what we
have to do is to create new States out of this conquered ter
ritory, at the proper time, many years distant, retaining them
meanwhile in a territorial condition, and subjecting them to
precisely such a state of discipline and tutelage as Congress
and the Government of the United States may see fit to pre
scribe. If I believe in the premises he assumes, possibly, though
I do not think probably, I might agree with the conclusion he
has reached; but, sir, I cannot believe that these States have
ever been out of the Union or that they are now out of the
Union. If they were, sir, how and when did they become so?
By what specific act, at what precise time, did any one of those
States take itself out of the American Union? Was it by the
Ordinance of Secession ? I think we all agree that an ordinance
of secession passed by any State of the Union is simply a nul
lity because it encounters the Constitution of the United States,
which is the supreme law of the land.
Did the resolutions of these States, the declarations of their
officials, the speeches of members of their legislatures, or the
utterances of their press accomplish the result? Certainly not.
They could not possibly work any change whatever in the re
lations of these States to the general Government. All their
ordinances and all their resolutions were simply declarations of
a purpose to secede. Their secession, if it ever took place, cer
tainly could not date from the time when their intention to
secede was first announced. After declaring that intention, they
proceeded to carry it into effect. How? By war. By sustain
ing their purpose by arms against the force which the United
States brought to bear against it. Did they sustain it? Were
their arms victorious? If they were, then their secession was
an accomplished fact. If not, it was nothing more than an
abortive attempt — a purpose unfulfilled. This, then, is simply
a question of fact, and we all know what the fact is. They did
not succeed. They failed to maintain their ground by force
of arms — in other words, they failed to secede.
CONGRESSIONAL RECONSTRUCTION 317
But the gentleman from Pennsylvania [Mr. Stevens] in
sists that they did secede, and that this fact is not in the least
affected by the other fact that the Constitution forbids seces
sion. He says that the law forbids murder, but that murders
are nevertheless committed. But there is no analogy between
the two cases. If secession had been accomplished, if these
States had gone out, and overcome the armies that tried to
prevent their going out, then the prohibition of the Constitu
tion could not have altered the fact. In the case of murder the
man is killed, the murder is thus committed in spite of the law.
The fact of killing is essential to the committal of the crime;
and the fact of going out is essential to secession. But in this
case there was no such fact.
During all these four years of war Congress has been mak
ing laws for the government of those very States, and the
gentleman from Pennsylvania has voted for them, and voted to
raise armies to enforce them. Why was this done if they were
a separate nation? Those laws were made for them as States.
The gentleman from Pennsylvania [Mr. Stevens] spoke of
States forfeiting their State existence by the fact of rebellion.
Well, I do not see how there can be any such forfeiture in
volved or implied. The individual citizens of those States went
into the rebellion. They thereby incurred certain penalties
under the laws and Constitution of the United States. What
the States did was to endeavor to interpose their State author
ity between the individuals in rebellion and the Government of
the United States, which assumed, and which would carry out
the assumption, to declare those individuals traitors for their
acts. The individuals in the States who were in rebellion, it
seems to me, were the only parties who under the Constitution
and laws of the United States could incur the penalties of
treason. I know of no law, I know of nothing in the Constitu
tion of the United States, I know of nothing in any recognized
or established code of international law, which can punish a
State as a State for any act it may perform. It is certain that
our Constitution assumes nothing of the kind. It does not deal
with States, except in one or two instances, such as elections
of members of Congress, and the election of electors of Presi
dent and Vice-President.
A State cannot be indicted ; a State cannot be tried ; a State
cannot 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 indi
vidual citizens commit treason or not.
318 GREAT AMERICAN DEBATES
WILLIAM D. KELLEY [Pa.]. — I desire to ask the gentleman
this question : by virtue of what does a State exist ? Is it by vir
tue of a constitution and by virtue of its relations to the Union ?
That is, does a State of the Union exist, first by virtue of a
constitution and secondly by virtue of its practical relations to
the Government of the United States? And, further, I would
ask whether those States, acting by conventions of the people,
have not overthrown the Constitution which made them parts of
the Union, and thereby destroyed or suspended — phrase it as
you will — the practical relations which made them parts of the
Union ?
MB. RAYMOND. — I will say, in reply to the gentleman from
Pennsylvania [Mr. Kelley], that it is not the practical relations
of a State at any particular moment which make it a State or
a part of the Union. What makes a State a part of the Union
is the Constitution of the United States; and the rebel States
have not yet destroyed that.
MR. KELLEY. — The question I propound is whether a State
does not exist by virtue of a constitution, its constitution, which
is a thing which may be modified or overthrown?
MR. RAYMOND. — Certainly.
MR. KELLEY. — And whether these rebellious constitutions or
States have not been overthrown ?
MR. RAYMOND. — A State does not exist by virtue of any par
ticular constitution. It always has a constitution, but it need
not have a specific constitution at any specific time. A State
has certain practical relations to the Government of the United
States. But the fact of those relations being practically opera
tive and in actual force at any moment does not constitute its
relationship to the Government or its membership of the United
States. Its practical operation is one thing. The fact of its
existence as an organized community, one of the great na
tional community of States, is quite another thing.
MR. KELLEY. — Let me interrupt the gentleman one moment
longer. I will ask him whether, if the Constitution be over
thrown or destroyed and its practical relations cease, there be
any State left?
MR. RAYMOND. — Why, sir, if there be no constitution of any
sort in a State, no law, nothing but chaos, then that State would
no longer exist as an organization. But that has not been the
case, it never is the case in great communities, for they always
have constitutions and forms of government. It may not be a
constitution or form of government adapted to its relation to
the Government of the United States; and that would be an
CONGRESSIONAL RECONSTRUCTION 319
evil to be remedied by the Government of the United States.
That is what we have been trying to do for the last four years.
The practical relations of the governments of those States with
the Government of the United States were all wrong — were hos
tile to that Government. They denied our jurisdiction, and they
denied that they were States of the Union, but their denial did
not change the fact; and there was never any time when their
organizations as States were destroyed. A dead State is a
solecism, a contradiction in terms, an impossibility.
These are, I confess, rather metaphysical distinctions, but I
did not raise them. Those who assert that a State is destroyed
whenever its constitution is changed, or whenever its practical
relations with this Government are changed, must be held re
sponsible for whatever metaphysical niceties may be necessarily
involved in the discussion.
I regard these States as just as truly within the jurisdiction
of the Constitution, and therefore just as really and truly
States of the American Union now, as they were before the
war. Their practical relations to the Constitution of the United
States have been disturbed, and we have been endeavoring,
through four years of war, to restore them and make them
what they were before the war. The victory in the field has
given us the means of doing this; we can now reestablish the
practical relations of those States to the Government. Our ac
tual jurisdiction over them, which they vainly attempted to
throw off, is already restored. The conquest we have achieved
is a conquest over the rebellion, not a conquest over the States
whose authority the rebellion had for a time subverted.
For these reasons I think the views submitted by the gentle
man from Pennsylvania [Mr. Stevens] upon this point are un
sound. Let me next cite some of the consequences which, it
seems to me, must follow the acceptance of his position, if, as
he asserts, we have been waging war with an independent power,
with a separate nation, I cannot see how we can talk of treason
in connection with our recent conflict or demand the execution
of Davis or anybody 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 assumption as that of the honorable gentleman we sur
render the whole idea of treason and the punishment of traitors.
I think, moreover, that we accept, virtually and practically, the
320 GREAT AMERICAN DEBATES
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. I do not see how upon those premises we can escape
that conclusion. If the States that engaged in the late rebel
lion constituted themselves, by their ordinances of secession or
by any of the acts with which they followed those ordinances, a
separate and independent power, I do not see how we can deny
the principles on which they professed to act, or refuse assent
to their practical results. I have heard no clearer, no stronger
statement of the doctrine of State sovereignty as paramount to
the sovereignty of the nation than would be involved in such
a concession. Whether he intended it or not, the gentleman
from Pennsylvania [Mr. Stevens] actually assents to the ex
treme doctrines of the advocates of secession.
WILLIAM E. NIBLACK [Ind.]. — I beg leave to inquire of the
gentleman whether the theory of the gentleman from Penn
sylvania, which he is combating, would not also, if carried
to its legitimate consequences, make those who resisted the
Confederacy in the insurrectionary States guilty of treason to
the Confederacy or to those States?
MR. RAYMOND. — I was just going to remark that 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 circumstances? Certainly not. Sim
ply disloyal to their own government, and deserters, or what
ever you may choose to call them, from that to which they
owe allegiance to a foreign and independent state.
Now, there is another consequence of the doctrine whi6h 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 gentle
man from Pennsylvania, would become the successors, the in
heritors, of its debts and assets, and we must pay them. Sir,
that is not simply a theory or a claim thrown out in debate
here; it is one advanced on behalf of the Government of Great
Britain as against us in the case in which cotton belonging to
the Southern Confederacy was claimed in Liverpool.
Our Government has denied from the beginning, and denies
now, that the Confederacy was ever such a corporation, such
an independent body of men as could contract debts, whether
we are liable for them or not. The declaration of our Secre
tary of State in his recent correspondence on that subject shows
CONGRESSIONAL RECONSTRUCTION 321
that we have always steadily denied that the Confederacy was
such a corporation as could contract a valid debt, whether we
would be made responsible for it or not. But one thing is
very clear, that, if we recognize the doctrine that those lately
in rebellion against our Government constituted an independent
power, we must concede their ability to contract debts. Whether
we as their successors are to pay them or not is another ques
tion, but the claim has been made, and denied only on the
ground of the incapacity of the rebel Confederacy to contract
debts or binding engagements of any sort.
JOHN F. FARNSWORTH [111.]. — I would like to ask the gen
tleman from New York whether he is entirely sure we have
the right to try Jefferson Davis for treason inasmuch as our
Government has given to them belligerent rights, has recog
nized and respected the commissions that he has issued?
MR. RAYMOND. — I have no doubt of it. I do not think that
the treason of Jefferson Davis has anything to do with the fact
that we conceded humane treatment to our prisoners of war.
Because we had granted to these States, as a power waging war,
rights usually accorded to nations at war, we were not there
fore concluded from proceeding against them as traitors.
The decision of the Supreme Court asserts that we have the
right to proceed against them as traitors, or, rather, that we
have the right to exercise against them both the powers of
sovereignty and of belligerents; that the one did not exclude
the other. It would be an extraordinary circumstance if, be
cause we treated them humanely as prisoners of war, we have
not the right to hold them responsible to the laws they have
broken.
Now, if, according to the view I have presented, we are to
deal with those States as States within the Union, the next
question that recurs is how are we to deal with them? The
gentleman from Ohio [Mr. Finck] who preceded me took the
ground that they had only to resume their places and their
powers in the National Government — that their Representatives
have only to come into this Hall and take their seats without
question and without conditions of any sort. I cannot concur,
sir, in this view. I do not think these States have any such
rights. On the contrary, I think we have a full and perfect
right to require certain conditions, in the nature of guaranties
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 sur
render, and in a political sense a surrender implies more than
VII— 21
322 GREAT AMERICAN DEBATES
the transfer of the arms used on the field of battle. It im
plies, 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.
But this is not all. They have still to surrender —
THOMAS A. JENCKES [R. I.]. — Was not the surrender of
the rebel arms made to the people of the United States ?
MR. RAYMOND. — It ought to be, and must be to them through
their representatives. The rebels surrendered to the generals of
our armies, who were commissioned by the President of the
United States, himself the representative of the people.
MR. JENCKES. — Not to the generals as the agents of the
President, but as the representatives of the military authority
of 'the people of the United States.
MR. RAYMOND. — Why, certainly all authority belongs to the
people. It is a mere distinction of^words, and scarcely that.
MR. JENCKES. — I beg pardon of the gentleman. It seems
to me that it is an essential distinction.
MR. RAYMOND. — Well, if it seems important to the gentle
man from Rhode Island or to anybody else, I am quite willing
to make the addition to my remark which he suggests. I will
say, then, that in surrendering on the field of battle they sur
rendered to the generals who were in command of the armies,
as agents of the President of the United States, who was and is
the representative of the people of the United States. If that
explanation is satisfactory to the gentleman I am very happy
to make it ; and perhaps I am obliged to him for having enabled
me to state it a little more specifically and accurately than I
did at first.
Now, there must be at the end of the war a similar sur
render 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
guaranty 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 sur
rendered? The principle of State sovereignty is one of them.
CONGRESSIONAL RECONSTRUCTION 323
It was the cornerstone 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 prin
ciple itself must be abandoned^ and the ordinances, so far as
this war is concerned, be declared null and void, and that dec
laration must be embodied in their fundamental constitutions.
We have a right to insist upon this; and it must be apparent
that, so far as that principle is concerned, this war was a perma
nent success.
JOHN A. BINQHAM [0.]. — The gentleman will allow me to
make the inquiry whether, if that were done to-day by South
Carolina, and the people of that insurgent State restored to all
their powers in this Union, they could not blot it out to-morrow
by every construction that has ever been given to the operation
of the Constitution of the United States upon any State main
taining its relations to this Government ? What guaranty would
that be ?
MR. RAYMOND. — I might as well ask the gentleman whether
if this Congress pass a certain law to-day they may not repeal
it to-morrow. I do not know anything that any community
can do that they cannot undo at some future time.
MR. BINGHAM. — When the gentleman talks of guaranties to
the people of the United States I ask him whether there is not
some other method that occurs to him by which these guaranties
can be obtained than to submit simply to the will of the insur
gent States? Is it not to be done by putting the guaranty in
the Constitution of the whole people of the United States, and
thus placing it beyond the power of South Carolina to repeal it ?
MR. RAYMOND. — Well, Mr. Chairman, there have been a good
many things put in the Constitution of the United States which
South Carolina did not deem beyond her power, and they under
took to prove that fact, but they did not succeed. My own im
pression is that whatever is now a part of the Constitution and
laws of this country is beyond the power of South Carolina to
disturb. I might as well ask the gentleman whether, when the
enemy surrendered its ordnance in the field, we ought not to
refuse to accept it because they might possibly at some future
day come and recapture it.
MR. BINGHAM. — The gentleman will excuse me. He talked
of new guaranties. The people of the United States undoubt
edly demand them. But I wish him to answer intelligibly what
new guaranty is given by incorporating in the constitution of
South Carolina the mere formula that she by her constitution"
324 GREAT AMERICAN DEBATES
declares that she has not the right to secede, when she has the
power the very next day to strike it out? Is that a new guar
anty?
MR. RAYMOND. — Certainly it is. That has never been in the
constitution of South Carolina before. If she puts it there now,
it is a new guaranty is it not ? Whether it is an adequate form
of that guaranty or not is another question which I have not
discussed. South Carolina has always hitherto asserted the
right of secession, and under that assertion she attempted to
secede. If she now repudiates or abandons that right, we have
certainly that new assurance that she will not renew the at
tempt. We shall certainly have this tangible admission on her
part that, if she does again rebel, it will be in direct repudi
ation and contempt of her own principles. I will not say that
nothing more would be desired or accepted. I am quite will
ing, if it can be done, to put that acknowledgment into the
Constitution of the United States. But I think it is there now,
and that it always has been there, and that there is no more
doubt about it now than if it were stated in express terms.
When I read in the Constitution of the United States that ' * this
Constitution shall be the supreme law of the land, anything in
the constitution or laws of any State to the contrary notwith
standing. I deem that to be as plain as any declaration can be
against the doctrine of State sovereignty, and I cannot believe
that any form of words on our part would be more explicit or
more emphatic. But if the gentleman can get any more ex
plicit denial into the Constitution of the United States, he will
find me voting for it every time.
Now there is another thing to be surrendered by the defeated
rebellion, and that is the obligation to pay the rebel war debt.
ROBERT C. SCHENCK [0.]. — Will the gentleman allow me to
inquire whether that guaranty in the constitution of South
Carolina amounts to anything more than the signature of an
indorser on the back of a note, who may at any time there
after take his name from the paper?
MR. RAYMOND. — Perhaps not; perhaps you can get better
security. If you can, I certainly shall not object. But, such
as it is, it is at all events something gained, and it is only in
that light that I have referred to it. Neither of the distin
guished gentlemen from Ohio [Messrs. Bingham and Schenck],
able lawyers as they are, will deny that we had the right to
demand that guaranty of South Carolina. And, if it was worth
while to demand it, it is hardly worth while, having got it,
to say that it is of no value at all. We expose ourselves by
CONGRESSIONAL RECONSTRUCTION 325
so doing to the imputation of trifling in having demanded it
at all.
MR. BINGHAM. — I have no doubt at all that the people of the
United States, those who maintained the integrity of their Con
stitution, had the right to demand of South Carolina a per
petual guaranty in the future that she should not even claim
the color of authority to secede and set up a government against
the constitutional authority of the Government of the nation.
And when they demand that I take it that the people of the
United States are not to be told that South Carolina alone is to
have the control and keeping of that guaranty. But the peo
ple of the United States are hereafter to be the guardians of
their own honor, and the protectors of their own nationality,
and they will take into their own keeping those great guaranties
that are to secure peace and prosperity to every section of the
Union in future, and to secure themselves against this work of
secession under the pretence of State sovereignty.
MR. RAYMOND. — Will the gentleman from Ohio [Mr. Bing-
ham] inform me who has ever pretended that the people of the
nation are not to take into their own hands the guaranties of
their own security and their own honor?
MR. BINGHAM. — Whoever pretends that future guaranties
against the pretension of the right of a State to secede are to
rest with the State alone, stands simply and solely on the reso
lutions of Virginia of 1798, out of the pernicious assumptions
of which came all our trouble.
MR. RAYMOND. — The gentleman tries to fasten upon me a
position that I have never taken. And it required all his in
genuity to reach the point at which he has at last arrived. I
said that we have a right to require from the people of South
Carolina the abandonment of their doctrine of secession. Now,
whether we may not also require that the people of the United
States shall reaffirm that and put it into the Constitution of
the United States is a thing about which I have said nothing
whatever, except that whenever presented in a proper form it
will have my assent.
MR. BINGHAM. — I am glad to hear the gentleman say that.
For if these guaranties are essential, and the gentleman seems
to agree that they are, then it is highly important that the
American people should determine them, without being inter
rupted in the settlement of that question by the intervention of
South Carolina under the pretension that she is a State in
this Union, with all the reserved rights of a State. What right,
I would ask, has she to set up any such pretension?
326 GREAT AMERICAN DEBATES
MR. RAYMOND. — Well, Mr. Chairman, the gentleman must
settle that matter with South Carolina.
MR. BINGHAM. — I propose, in cooperation with the loyal peo
ple and their Representatives in Congress, to settle it with South
Carolina.
MR. RAYMOND. — I can. only say on that subject that South
Carolina found herself invited by the President of the United
States, the representative of the people of the United States,
as the gentleman from Rhode Island [Mr. Jenckes] very prop
erly insists that I shall term him, to cooperate in the restora
tion of the Union — to resume her functions as a State of the
Union, and, as a preliminary step, to repudiate this debt and
give this guaranty of her loyalty and good faith.
MR. BINGHAM. — I beg the gentleman's pardon. I do not
think he can find anywhere any authority for the statement that
the President of the United States ever invited South Carolina
to exercise any voice or vote on that question here in Congress.
MR. RAYMOND. — The President certainly has indicated to the
Southern States that he expected them to declare, in their con
stitutions, that their ordinances of secession were null and void ;
and in his message he speaks of an invitation to them to renew
their functions as States of the Union; and that covers the
whole ground that I attempted to speak upon in connection with
this point.
MR. BINGHAM. — I only wish to know the gentleman's posi
tion — to ascertain whether it is or is not that South Carolina
and other seceding States now sustain such relations to this
Union that they have the right to-day, under the Constitution,
to have representation upon this floor according to the appor
tionment of 1862.
MR. RAYMOND. — Without any guaranties or conditions at
all?
MR. BINGHAM. — I contend that all guaranties are worthless,
unless embodied in the Constitution of the United States. Does
the gentleman insist that South Carolina has now the right,
under the Constitution, to representation in Congress as a State
of the Union because her relations to the Governcment are,
under the Constitution, those of a constitutional State in the
Union ?
MR. RAYMOND. — I have already said, sir, and said it as clearly
and emphatically as I can, that we have a right to demand, and
that we are in duty bound to demand, certain concessions from
all the States lately in rebellion, as parts of their surrender,
and as conditions of their resuming their functions in the Gov-
CONGRESSIONAL RECONSTRUCTION 327
ernment of the nation. As to their representation in Congress,
I should, before determining that question, wish to know some
thing more of the character and position of the men they may
send, and of what they have done.
MR. BINGHAM. — So do I ; and I think that Congress ought to
decide the question.
MR. RAYMOND. — I have not assumed to decide that point. I
have not said anything about what the Southern States have
done. I have simply said what we have a right to require
them to do; and the renunciation of the doctrine of State sov
ereignty is one thing that we have a right to require at their
hands. We have a right also to require them to do another
thing — to repudiate their obligation for debts incurred in carry
ing on the war against the Government. Whether they have
done this or not is another matter which may come up at an
other time.
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 constitutions, but
in the Constitution of the United States. And we have re
quired 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 pur
suit of happiness. " This I am sure the gentleman will con
cede to be a substantial guaranty — one placed beyond the power
of any State to recall or repeal.
These things the President of the United States has deemed
it his right, as Commander-in-Chief of the armies of the United
States, to demand at the hands of the States which have been
defeated in their attempt to separate themselves from the Union,
as the condition of relaxing the bonds of military authority over
them and restoring to them again the control of their local
State affairs. He made these the conditions upon which they
would be allowed, so far as his rightful authority extended, to
resume the practical exercise of their functions as members
of the Union, which had been suspended by their rebellion. He
has done this in the exercise of his lawful authority as Com
mander-in-Chief of the Army of the United States, and was
therefore responsible for the complete suppression of the re
bellion and the restoration of peace, order, and loyalty in the
regions where they have been for a time disturbed and over
thrown. He has done it through agents, exercising a delegated
328 GREAT AMERICAN DEBATES
and just authority — acting on his behalf and in his name —
just as his military generals prescribed the terms and conditions
of the rebel surrender in the field ; and the fact that these con
cessions have been granted affords at least a fair presumption
that those who make them intend hereafter in good faith to
abide by all the obligations and fulfill all the duties imposed
by the Constitution and laws of the United States. It may
possibly be wise for us to dismiss all these concessions and all
these guaranties given by eight million people, and sanctioned
by the most solemn forms of legislation, as utterly worthless
and insincere. But that is a matter upon which each individual
must exercise his own discretion upon his own responsibility.
Mr. Chairman, I am here to act with those who seek to
complete the restoration of the Union, as I have acted with
those through the last four years who have sought to maintain
its integrity and prevent its destruction. For myself I shall
endeavor to act upon this whole question in the broad and liberal
temper which its importance demands. We are not conducting
a controversy in a court of law. We are not seeking to enforce
a remedy for private wrongs, nor to revenge or retaliate private
griefs. We have great communities of men, permanent interests
of great States, to deal with, and we are bound to deal with
them in a large and liberal spirit. 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 natu
rally 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 institu
tions, by suffering at our hands the absolute rule we denounce
in others. It may be best for us and for them that we dis
card in all our dealings with them all the obligations and re
quirements of the Constitution, and assert as the only law for
them the unrestrained will of conquerors and masters.
I confess I do not sympathize with the sentiments or the
opinions which would dictate such a course. I would exact of
them all needed and all just guaranties for their future loyalty
to the Constitution and laws of the United States. I would ex
act from them, or impose upon them through the constitutional
legislation of Congress and by enlarging and extending, if neces
sary, the scope and powers of the Freedmen's Bureau, proper
care and protection for the helpless and friendless freedmen, so
CONGRESSIONAL RECONSTRUCTION 329
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 participate in the high pre
rogative 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.
I believe it important for us as well as for them that we
should cultivate friendly relations with them, that we should
seek the promotion of their interests as part and parcel of our
own. We have been their enemies in war, in peace let us show
ourselves their friends. Now that slavery has been destroyed —
that prolific source of all our alienations, all our hatreds, and
all our disasters — there is nothing longer to make us foes. They
have the same interests, the same hopes, the same aspirations
that we have. They are one with us; we must share their suf
ferings and they will share our advancing prosperity. They
have been punished as no community was ever punished before
for the treason they have committed. I trust, sir, the day will
come ere long when all traces of this great conflict will be
effaced, except those which mark the blessings that follow in
its train.
I hope and believe that we shall soon see the day when the
people of the Southern States will show us, by evidences that
we cannot mistake, that they have returned, in all sincerity and
good faith, to their allegiance to the Union ; that they intend to
join henceforth with us in promoting its prosperity, in defend
ing the banner of its glory, and in fighting the battles of demo
cratic freedom, not only here, but wherever the issue may be
forced upon our acceptance. I rejoice with heartfelt satisfac
tion that we have in these seats of power — in the executive de
partment and in these halls of Congress — men who will cooper
ate for the attainment of these great and beneficent ends. I
trust they will act with wisdom ; I know they will act from no
other motives than those of patriotism and love of their fellow-
men.
MR. JENCKES. — When the gentleman from New York says,
looking at the question of reconstruction, that there resides in
the Executive power to impose conditions upon the resumption
of the rights of the States which have been in rebellion, I ask
him where he finds that power — in the Constitution of the
330 GREAT AMERICAN DEBATES
United States or in the public law, the law of war, the law of
nations which overrides when it is once called into existence?
Is it the power of carrying on foreign war or suppressing do
mestic insurrections?
The day's session came to a close with Mr. Jenckes'
question unanswered.
On January 5 Rufus P. Spalding [0.], a representa
tive of what was probably the most radical section in
the Union, the "Western Reserve," stated what condi
tions of reconstruction of the States lately in rebellion
would be satisfactory to his constituency. These were :
1. Qualified right of suffrage in the District of Columbia ;
2. Amendment of the Constitution excluding negroes from
being counted in making up the ratio of the representation in
Congress except in States granting them the suffrage;
3. Constitutional amendment prohibiting nullification and
secession ;
4. Constitutional amendment prohibiting repudiation of the
national debt and assumption of the rebel debt;
5. Constitutional amendment denying admission to Congress
of former rebels.
On January 8 George E. Latham [W. Va.] gave a
border State view of the subject.
Who questioned the right of the loyal people of these
[border] States to reestablish their governments in their re
spective capitals when they recovered the power to do so ? And
where is the difference in the principle involved in the condition
of these States and of those yet unrepresented upon this floor?
Those yet unrepresented were a while wholly instead of par
tially overrun, and were longer under rebel control ; but are the
rights of loyal citizens destroyed by "the law's delay," or by
the inability of the Government to which they bear allegiance
to extend to them, for a time, its protection and support? In
what, then, consists the difference in principle, except it be in
the single fact that in the one class ordinances of secession (so
called) were adopted and in the other were not?
Sir, those who accord to those ordinances an importance so
essential and vital as this are, in my humble opinion, not one
whit less disunionists in theory and principle than those who
CONGRESSIONAL RECONSTRUCTION 331
adopted them. But we are seriously told upon the floor of this
House, by those claiming to be par excellence the friends of
the Union, that these States are out of the Union! Look, sir,
and count the stars and stripes upon that flag. Does this House
indorse a flaunting lie in its presence every day, hour, and
minute of its sitting? Why floats in the breeze that banner
untorn from the top of this hall, attracting the gaze of admir
ing multitudes for miles around, if eleven of the States repre
sented thereon have ceased to be States and are no longer
members of this Union ? Is it to deceive foreign nations through
their representatives at your Government? Go, sir, and ask
the honest tar in your navy yard, or upon the wide ocean, or
in a foreign port, if the flag floating from his masthead flaunts
a lie — is a deception and a cheat! Ask the returning veteran,
scarred and maimed, who risked his life and shed his blood to
save and perpetuate the Union, if "the war has been a failure,"
and if the flag he bears so proudly homeward is all that is
saved from the wreck of his dismembered country ! Sir, I leave
the reply to your imagination; and I would not envy the gen
tleman who champions this doctrine the pleasure of a tour over
this country, charged with the duty of cutting the represen
tatives of eleven States from that flag which has become a
household god in every loyal family throughout the land.
To restore these State governments, then, is, in my opinion,
to reinstate them as they existed when overthrown by the re
bellion, subject only to such changes as are necessary to con
form them to the present status of the National Government.
During the suspension of the proper practical relations between
the people of these States and the National Government the
institution of African slavery has been abolished, and upon
resuming these relations they are now required to conform
their organic law to this very important change, not be
cause their State constitutions are not republican in form
without this change, but because the Constitution and laws of
the United States are supreme, and those of the several States
must conform to them.
Mr. Latham was in favor of admitting representa
tives to Congress from the States to be reconstructed on
two guaranties alone:
1. Taking the oath of allegiance; and
2. Ability of the constituency of these representatives to
maintain a loyal civil government without military aid.
332 GREAT AMERICAN DEBATES
Samuel Shellabarger [0.] specifically answered the
speech of Mr. Raymond. Says Mr. Elaine, he spoke with
care and preparation, as was his habit. He wasted no
words, but in clear, crisp sentences subjected the whole
question to the rigid test of logic.
I sliall inquire whether the Constitution deals with States.
I shall discuss the question whether an organized rebellion
against a government is an organized State in that government ;
whether that which cannot become a State until all its officers
have sworn to support the Constitution remains a State after
they have all sworn to overthrow that Constitution. If I find
it does continue to be a State after that, then I shall strive to
ascertain whether it will so continue to be a government — a
State — after, by means of universal treason, it has ceased to
have any constitution, laws, legislatures, courts, or citizens in it.
If, in debating this question, I debate axioms, my apology
is that there are no other questions to debate in reconstruction.
If, in the discussion, I make self-evident things obscure or in
comprehensible, my defence shall be that I am conforming to
the usages of Congress. I will not inquire whether any subject
of this Government, by reason of the revolt, passed from under
its sovereignty or ceased to owe it allegiance; nor shall I in
quire whether any territory passed from under that jurisdic
tion, because I know of no one who thinks that any of these
things did occur. I shall not consider whether, by the rebel
lion, any State lost its territorial character or its defined boun
daries or subdivisions, for I know of no one who would obliter
ate these geographical qualities of the States. These questions,
however much discussed, are in no practical sense before Con
gress.
What is before Congress? I at once define and affirm it in
a single sentence. It is, under our Constitution, possible to,
and the late rebellion did in fact, so overthrow and usurp, in
the insurrectionary States, the loyal State governments as that,
during such usurpation, such States and their people ceased to
have any of the rights or powers of government as States of
this Union, and this loss of the rights and powers of government
was such that the United States may, and ought to, assume and
exercise local powers of the lost State governments, and may
control the readmission of such States to their powers of gov
ernment in this Union, subject to and in accordance with the
obligation to guarantee to each State a republican form of
government.
CONGRESSIONAL RECONSTRUCTION 333
Upon the broad proposition thus laid down Mr. Shel-
labarger proceeded to submit an argument, which, for
closeness, compactness, consistency and strength, says
Mr. Elaine, has rarely, if ever, been surpassed in the
Congress of the United States. Other speeches have
gained greater celebrity, but it may well be doubted
whether any speech in the House of Representatives
ever made a more enduring impression or exerted
greater convincing power upon the minds of those to
whom it was addressed. It was a far more valuable ex
position of the reconstruction question than that given
by Mr. Stevens. It was absolutely without acrimony, it
contained no harsh word, it made no personal reflection ;
but the whole duty of the United States, and the whole
power of the United States to do its duty, were set forth
with absolute precision of logic. The reconstruction de
bate continued for a long time and many able speeches
were contributed to it. While much of value was added
to that which Mr. Shellabarger had stated, no position
taken by him was ever shaken.
Mr. Shellabarger first discussed
WHAT, BY THE LAW OF NATIONS, IS A STATE?
Upon this point he said :
At the very foundation of this discussion lies the question,
what make up the necessary elements of every State in this
Union? What properties are they which, if any one be lost
by a State, it ceases to be entitled to exercise the powers and
demand the rights of a political and governing member of that
Union ?
The argument I now derive from "public law" is really
identical with the one I shall next adduce, and shall base upon
the express terms of the Constitution. In this argument — As
suming, as I do, two axioms of our law; first, that the law of
nations is part of your Constitution (Const., art. 1, sec. 8, clause
10), and, second, that such Constitution is to its States, at least,
as much "supreme law" as the international code is law to
the civilized states which are under its sway — I here only show
that these law-defying communities in rebellion cannot be
' ' States, ' ' unless our Union has lowered and debased the world 's
"legal idea" of a "state."
334 GREAT AMERICAN DEBATES
What, then, is required to constitute a state by the law of
nations ?
We answer:
1. "A fixed abode and definite territory belonging to the
people who occupy it." (Wheaton, 33.)
2. "A society of men united together for the purpose of
promoting their mutual safety and advantage by their combined
strength." (76., 32.)
3. "The legal idea of a State necessarily implies that of
habitual obedience of its members to those in whom the superi
ority is vested." (/&., 33.)
This third necessary element of a state is the only important
one in this discussion. Hence, I add the following high au
thorities :
Grotius (Book 3, chapter 3, section 2) says:
"The law, especially that of nations, is in the state as the soul is in
that of the human body, for that being taken away it ceases to be a.
state."
Burlamaqui (Volume 2, page 25), in defining a state, says:
"It is a multitude of people united together by a common interest and
common laws, to which they submit with one accord."
I might add to these all the writers on public law for cen
turies, in confirmation of what is self-evident without proof,
that there can be no state where the people do not habitually
obey the laws. For four hundred years the unanimous con
science and common sense of the civilized world have refused to
recognize the existence of a people who were habitually disobe
dient to their own laws or the law of nations. Such a people is
blotted out.
Can it be that for four centuries the united conscience and
judgment of the civilized world shall prohibit the existence
upon the earth of such a monster as a state whose people are
habitually lawless, and then shall it be left for our "more per
fect Union" to establish "States" which, although they cannot
commence their existence until every officer and minister of that
State shall swear to support the Constitution of the United
States, as the supreme law of the land, yet shall continue to be
States after every officer of such State had discarded such oath,
and every inhabitant had, for years, defied and discarded these
"supreme laws"?
CONGRESSIONAL RECONSTRUCTION 335
In the lights of the public law of the world let this Con
gress answer the startling question whether an organized rebel
lion has come to be an organized "State"; whether "habitual"
treason has come to be "habitual obedience to law"; and
whether the legal "idea of a state" has come to be a synonym
for chaos, in which are commingled, in unalleviated political
ruin, the absolute overthrow of all its "supreme laws," the
wreck of all loyal constitutions, laws, and forms of govern
ment, and the death or exile of every inhabitant who admitted
the existence of such loyal State!
Surely, Mr. Chairman, it is not too much to say that even
under the settled precepts of public law those eleven districts,
called ' ' Confederate States, ' ' ceased to be States. In them, dur
ing so many dark years, there was no obedience to law except
the law which compelled the defiance of all "supreme laws";
there was no government except that one which consisted in
enforcing disloyalty to government; there was no observance
of the "law of nations," unless that is to be found in indis
criminate and remorseless assassination or murder of every loyal
man whom their treason could reach either by means of the
dagger, the torpedo, the poisoned food, the bandit, the viola
tions of truce, or the systematized destruction of prisoners of
war. Their body-politic was one gigantic treason, made up of
eleven organized rebellions, combined into one by the force of
a relentless military despotism.
But, sir, the unexampled magnitude of these interests in
volved impels me on to what are, if possible, more conclusive
arguments. I go from the public law to the Constitution.
WHAT IS A STATE OF THIS UNION?
That which is required to be added to the properties which
belong to every state, in the sense of the international law, in
order to constitute a State of our Union, is —
1. Its citizens must owe, acknowledge, and render supreme
and habitual allegiance and obedience to the Constitution, laws,
and treaties of the United States in all Federal matters, these
being the supreme laws to the States and their citizens. (Con
stitution, article 6.)
2. All "the members of the State legislatures and its exec
utive and judicial officers shall be bound by oath or affirmation
to support the Constitution" of the United States. (Article 6.)
3. That the United States shall have so "admitted it into
this Union" (article 5, section 3) as to have assumed "to guar-
336 GREAT AMERICAN DEBATES
antee to it a republican form of government, and to protect it
against invasion, and," on application, "against domestic vio
lence."
4. And by such recognition and "admission into this Union"
to have secured to it, as a body-politic, or "State," certain
rights of participation in the control of the Federal Govern
ment ; which rights I shall name hereafter. ( See also 1 Bishop
on "Criminal Law," sections 128 to 137, inclusive.)
No one who can read the Constitution will deny that each
State in this Union must have every one of these properties
before it can commence to exist in the Union; because the Con
stitution so declares. Now, the question I consider is whether
it shall continue to be a State, in the sense that it holds the
powers and rights of a State, after it has lost every property
which it must have before it could commence to exist in the
Union.
DOES THE CONSTITUTION DEAL WITH STATES?
The gentleman from New York [Mr. Raymond] says:
"The Constitution does not deal with States except in one or two in
stances, as the election of members of Congress and the election of electors
of President and Vice-President. ' '
This statement involves an error both of fact and law which,
considering its highly intelligent and patriotic source, is amaz
ing. Now, sir, reading English will correct this error. Turn
to the Constitution. It deals with States, in the way of impos
ing restraints and obligations upon them as States, in the fol
lowing matters: regulating commerce among the States; re
quiring Representatives, also United States Senators, to reside
in their respective States ; prohibiting States from entering into
any treaty, alliance, or confederation, coining money, emitting
bills of credit, making anything but gold and silver coin a
tender for debt ; passing any bill of attainder, ex post facto law,
or law impairing the obligation of contracts; from taxing im
ports or exports without consent of Congress; from laying ton
nage duty; from keeping troops or ships of war in time of
peace; from entering into any compact with another State or
foreign power; from engaging in war unless invaded or in im
minent danger thereof; from refusing to give full faith to
records, etc., of other States; from refusing to surrender fugi
tives from justice or labor; in requiring States to be tried in
the courts of the United States; requiring all their officers to
take an oath to support the Constitution; requiring them to
CONGRESSIONAL RECONSTRUCTION 337
pay State's proportion of direct taxes; in prohibiting "either"
State from conferring any other emolument upon the President
than his salary; in requiring them to furnish, at command of
the President, their militia; and in subordinating their-
" judges," "constitutions," and "laws" to the Constitution,
laws, and treaties of the United States as "the supreme law of
the land."
It secures rights and confers powers upon the States as
States in each of the following respects. It secures to each the
right to elect at least one Representative, to elect two Senators,
to cast one vote in ratifying constitutional amendments, and in
calling a convention to make such amendments; to cast one vote
in electing a President in the House, to appoint in such manner
as the legislature thereof may direct electors to elect a Presi
dent and Vice-President, to fill by appointment vacancies in
Congress, to demand that "in the regulation of commerce no
preference shall be given to the ports of one State over those
of another," in securing equal immunities to their respective
citizens, in having guaranteed to them republican governments,
in being protected against insurrection and domestic violence, in
securing them from being divided, etc., and in enabling them
to define the qualification of electors for United States officers
by fixing that of the most numerous branch of the State legis
latures.
My object, Mr. Chairman, in reciting these fifty or more
supremely important provisions of the Constitution, in every
one of which it is evident, both by the nature and express
terms of the provisions themselves, and by the innumerable
adjudications of the courts, that the Constitution "deals with"
the States, as such, was not the frivolous one of showing that
there were more than "one or two" of these. My purpose was
the higher one of showing how baseless that argument was
which was based upon the assertion that the Constitution did not
deal with States, but individuals only, and that, therefore, not
the States but only individuals could lose their rights under
such Constitution. I wanted not only to show the argument
baseless, but that its precise opposite is the exact truth. I
wanted to show that the very body, soul, life, and essence of
the Constitution are penetrated, pervaded, and characterized by
and with this recognition of the States, and of their high powers
as such. I wanted to bring into view the momentous and con
trolling fact which disposes of this high constitutional question,
that the States are not only "dealt with" by the Constitution,
but that their powers as States in our Government are abso-
VII— 22
338 GREAT AMERICAN DEBATES
lutely vital. And I separated the obligations and restraints im
posed upon the States and their officers from the conferments
of rights and powers upon them, that it might appear to all
men and to the very children who can read their Constitution
that, in this marvelous great scheme of government, as in every
other wise human government, as well as in God's, the enforce
ments of obligation are coupled with and inseparable from the
enjoyment of rights; that prescribed qualifications for the at
tainment of power must be possessed and proceed, and are in
separable, from the exercise of power. I wanted to show that
there could be, under the Constitution, none of the rights or
powers of a State where there were recognized none of the
obligations or duties of a State.
Sir, how long may this nation survive with a Senate elected
by rebel legislatures; or with treaties made by Senators chosen
by rebel States; or with a President selected by electors chosen
by the legislature of South Carolina ; or with a President elected
in a House of Representatives where each rebel State casts one
vote; or with a House of Representatives elected by electors
whom a rebel legislature would authorize to vote; or with offi
cers over United States forces appointed by rebel governors; or
with such constitutional amendments as would be ratified by
rebel legislatures; or with a traitor for President whom you
could remove only by the impeachment of a Senate elected by
rebel legislatures; or with such foreign ministers and other
officers of the United States as such a Senate would confirm;
or with a prohibition upon your closing the ports of the
eleven rebel States to a commerce supplying them with all the
supplies of war, unless you also closed all the ports of the other
States?
Sir, if the recital of these powers which the States, as such,
hold in governing this Union does not prove that a State in
rebellion, and whose government and people are in actual hos
tility to the United States, is not a component part of this
Union, during the continuance of such rebellion, for the purpose
of exercising any power, then such recital does prove other
things. It proves that "Independence Hall" was a madhouse
from the 14th of May to the 17th of September, 1787; and
that the madmen there succeeded in devising a framework of
government embodying in it a larger number of separate
and fatal instruments of self-slaughter than was ever combined
in a government before, or than was ever dreamed of by men
who make Utopias, or by them who form governments in Bed
lam.
CONGRESSIONAL RECONSTRUCTION 339
CONGRESS HAS ASSUMED THAT REBEL STATES HAD NO RIGHTS AS
STATES
I admit that the action of this Government was not, at all
times during the war, harmonious nor consistent upon the
matter of according rights to rebel districts. It would have
been strange, indeed, if all such action, done, as it was, in the
midst of the awful events of such wars, revolutions, and break
ings up of the systems of governments, had been consistent upon
any subject. Besides, as mere measures of war, there was con
stant temptation to err, if at all, in the direction of according
to loyalty in the insurrectionary districts every possible protec
tion and power, to the end that it might be developed into sup
port of a Government staggering to its fall under the blows of
treason.
But still the most solemn and deliberate action of your Gov
ernment in all its departments, and recently all its actions, pro
ceed upon the assumption that these rebel States had lost all
the rights of States.
Among these acts may be mentioned those of July 13, 1861,
and 30th of same month. These have been held to be acts
"regulating commerce" (11 American Law Register, 419), and
they close the ports of the rebel States to all commerce and
capture their ships upon the seas. And yet, if these Southern
ports were ports of States having the rights of States, you
could not only not close them "in regulating commerce," but
you could give no port any preference over them. Again, in
every revenue and tariff act which you passed in regulating
commerce and the revenue since the war began, you have not
only "given preferences" against the Southern ports, but you
have provided for their being totally shut to all commerce.
Could you provide in a tariff bill that the ports of New York
shall be open and those of Massachusetts closed?
These are only examples.
POSITION OF THE PRESIDENT
The President has assumed that the rebel States ceased to be
States in the sense I am considering when the military power
of the rebellion was extinct, and actual war was ended, and
the necessity for resort to mere war powers and expedients
ceased. It was then, he holds, that the laws and constitutions
and powers of State governments of these States sprang into
life and force if they were only put into abeyance by the war
340 GREAT AMERICAN DEBATES
and could all come back into life and force when the war
was gone.
On the 29th of May, 1865, these old State constitutions had
either come to be in force or they had not. If they were in
force at all, then all their provisions were in force and binding,
just as much as New York's constitution was; and could only be
changed in the mode prescribed by themselves. Is it competent
for the United States to order New York to call a convention
and change her constitution? Is it competent for the United
States to order it changed in a way in total disregard to the
modes of amendment which it prescribes as the only ones by
which it can be amended ?
Now what has happened in these rebel States? Take one
example as a specimen of all. On the 29th of May, 1865, Presi
dent Johnson issued a proclamation appointing Holden provi
sional governor of North Carolina, and ordered him, under pre
scribed rules, to call a convention for "altering or amending
the constitution of North Carolina," etc. But then that consti
tution of North Carolina prescribes how alone it can be altered.
The convention ordered by the President is wholly unknown to
and in violation of the old constitution ; and if it was in force at
all on the 29th of May, it could no more be altered in that way
than the constitution of England could.
Precisely the same thing, in principle, has occurred in every
rebel State except, perhaps, three. By presidential proclama
tions new governments have been professedly called into exist
ence since the war was ended, and since the old constitutions
and laws were revived out of abeyance, if they did revive. In
every one the new constitutions and governments have been
formed in almost total disregard of the provisions of the consti
tutions which they profess to amend. Now, it is exactly impos
sible to comprehend the action of the Executive except upon the
assumption that these State constitutions and their governments
had not revived so as to control the methods of their own amend
ment.
No, no, Mr. Chairman, the President himself tells the coun
try, in the notable words of his proclamation, where it is that he
deems that he gets this power to order States into existence. His
words are, "Whereas the fourth section of the fourth article of
the Constitution of the United States declares that the United
States shall guarantee to every State in the Union a republican
form of government, I, Andrew Johnson, President and Com
mander-in-chief," etc. Sir, here is an unmistakable avowal of
the source of his power and of the cause that called that power
CONGRESSIONAL RECONSTRUCTION 341
forth. If the old government and constitution of North Caro
lina had in fact come back to her out of the suspended anima
tion which the rebellion had caused, then she on this 29th day of
May already had a republican constitution — there was no oc
casion to alter the constitution to make it republican, nor need
to guarantee such a form of government to her.
Sir, let me not be misunderstood. I am not pointing to these
acts of the President as wrong, but to show that the President
has dealt with this great question precisely in the view I main
tain, to wit, that these old State governments were so effectually
overthrown that they do not come into force at the end of the
war so as to furnish the basis of republican governments to these
States ; and that it has become the business of the United States
to guarantee such governments to hold them. They attack the
President who hold that in these acts of the Executive, in creat
ing new constitutions, he did so in violence and disregard of
living constitutions and republican governments already there.
I do not attack him. If, indeed, these old State constitutions
had, on the 29th of May, 1865, resumed their sway over these
States, as the new champions of the President in this House al
lege, then indeed has the man they champion, in disregarding
and superseding these constitutions, become usurper. Well may
the patriotic executive head of this nation repeat once more the
chronic prayer which, in all ages, weak adulation has extorted
from men in power, "Deliver me from my friends."
But I go on. I now show that the third or judicial branch of
the Government is, by solemn and unanimous judgments, twice
repeated, committed, in principle, to the same exact conclusions.
But in presenting these high arguments — the judgments of
the Supreme Court — let me make them at once serve the double
end of making utterly conclusive and complete the position that
a State may cease to have the governing rights of States by rea
son of rebellion, and of also answering what is urged so much
as to the logical and practical consequences of that position.
An able statement of these objections has been laid on our
table. Their effect is—
1. That it admits that a State may secede.
2. That, as a consequence of this, Jefferson Davis cannot
be punished for treason any more than the Governor of Canada
could be.
3. That if we admit the rebels "were to be regarded as
342 GREAT AMERICAN DEBATES
belligerents, ' ' then when we take them back we become liable for
their debts.
4. That individuals and not the States forfeit their rights
by treason.
In enforcing these objections my friend from New York
[Mr. Raymond] says:
"If they were out of the Union, when did they become so? They were
once states in the Union. If they went out of the Union it was at some
specific time and by some specific act."
Before the Supreme Court shall be made to answer, as it
will, each one of these objections, permit me, Mr. Chairman, to
allude to them; and first to this question about the "specific
act," which the gentleman from New York [Mr. Raymond]
asks. In respectfully answering his questions let me ask and
answer some others of similar legal aspect.
I ask when and by what specific act does "tumult" become
"war" in law? I answer, in the language of Chief Justice
Marshall, when it, in fact, assumes "warlike array and
strength." What in a civil war is the specific act and time
which changes, in law, an "insurrectionary party" into a "bel
ligerent"? I answer, in the language of the Supreme Court,
when in fact "ihe regular course of justice is interrupted by re
volt, rebellion, or insurrection, so that the courts of justice can
not be kept open." When, in law, does a revolt become civil
war? I answer, in the -language of Wheaton, when "the insur
rection becomes, in fact, so strong as no longer to obey the sov
ereign, and to be able by war to make head against him."
When, in law, and by what specific act, did the entire popula
tion of Virginia, including the loyal men, cease to be " friends, ' '
and become "enemies of the United States"? I answer, when,
in fact, they became "belligerents."
The destruction and supersedure of all loyal government and
law in South Carolina was a fact, not a law. It was this fearful
"fact" which made her cease to be a State governing this
Union, and not any ordinance of secession.
The distinguished gentleman to whom I have alluded states
the fourth objection which I have named in these words:
"The people of a State may, by treason, forfeit their rights, but in a
legal point of view they have no power to affect the condition of a State
in the Union. ' '
That is, turned out of metaphysics into English, every in
habitant of a State may, by treason, come to have no political
CONGRESSIONAL RECONSTRUCTION 343
rights or powers whatever as individuals except the right to be
hung; but the same individuals, put into a bundle and called
a body-politic or State, have all political rights and powers, and
can govern this Union ! Now, a plain man would have difficulty
in being able to see a living, acting, ruling State where there
was no constitution, court, or law, and where there were no in
habitants, all these having been hung for treason. Such a man
would be dull enough to conclude that if you hung for treason
all the people required to make up the body-politic called a State
the State would at least be in affliction.
But, Mr. Chairman, it was unfortunate for this distinction
between the political State and its people that it has repeatedly
encountered the ordeal of the Supreme Court and has been ut
terly discarded by it.
In 3 Dallas, 93, that court says :
"A distinction is taken at bar between a State and the people of a
State. It is a distinction I am not capable of comprehending. By a State
forming a republic (speaking of it as a moral person) I do not mean the
legislature of the State, the executive of the State, or the judiciary, but all
the citizens which compose the State, and are, if I may so express myself,
integral parts of it, all together forming a body-politic."
Two years before the objections I have quoted were so ably
uttered, they had been pressed, with learning, zeal, and ability
equal to his, upon the consideration of the Supreme Court in
the "Prize Cases/' (2 Black, 635), and had been discarded
unanimously by that court, nine judges sitting, including Taney.
All the court agree that after the passage of the act of Congress
of 13th July, 1861, recognizing the existence of the war, every
inhabitant of the rebel States became "enemies" of the United
States and "belligerents."
I affirm that the reasoning and judgment of this case settle
and establish each one of the following propositions:
1. From the seventh paragraph of the Syllabus (page 636)
I quote and affirm that the late "civil war between the United
States and the so-called Confederate States, ' ' had ' * such charac
ter and magnitude as to give the United States the same rights
and powers which they might exercise in the case of a foreign
war."
2. From the ninth paragraph of the same Syllabus I quote
and affirm that "all persons residing within the territory occu
pied by the hostile (rebel) party in this contest were liable to be
treated as enemies though not foreigners."
3. I affirm again, quoting from the opinion of the court
344 GREAT AMERICAN DEBATES
(page 673), that "it is a proposition never doubted that the
belligerent party who claims to be sovereign may exercise both
belligerent and sovereign rights."
4. I affirm that precisely the same objections were urged in
this case as those I have quoted ; and were stated by the court in
these words, "that insurrection is the act of individuals and not
of the government or sovereignty," and "that the individuals
engaged are the subjects of law," and "that secession ordinances
are nullities and ineffectual to release any citizen from his al
legiance. ' '
To these objections the Supreme Court replies:
' ' This argument rests, on the assumption of two propositions, each of
which is without foundation upon the established law of nations. It as
sumes that where a civil war exists the party belligerent claiming to be
sovereign cannot, for some unknown reason, exercise the rights of belliger
ents, though the revolutionary party may."
Again the court replies to those objections in the following
words, the court italicising the words:
"In organizing this rebellion they have acted as States claiming to be
sovereign over all persons and property."
In December, 1865, the ten judges (2 Wallace, 404) unani
mously decided the same thing; that all the inhabitants, guilty
and innocent, became belligerents and "enemies" of these
United States.
The results of these two decisions are that these rebel States :
1. Acted as States, in organizing the rebellion.
2. That all their citizens, innocent and guilty, were thereby
made "enemies of the United States."
3. That though they became "enemies" that did not make
them "foreign" States so as that when we take them back we
must pay their debts.
4. That, as the court decides that the United States may
exercise over these people both "belligerent" and "sovereign"
rights, therefore we may, as sovereign, try Davis for treason,
although we did treat and hold these States as an "enemy's"
country.
5. As these States became " enemies * " territory, and all
persons residing within it became "enemies of the United
States, ' ' they cannot at the same time have been a people having
any political rights to govern in this Union, unless indeed this
Union can be governed by a body of people, every one of whom
CONGRESSIONAL RECONSTRUCTION 345
are held by its law to be the "public enemies of the United
States."
HENRY C. DEMING [Ct.]. — I would respectfully ask my
friend from Ohio if he has any authorities, outside of those
quoted in the prize cases, for the purpose of vindicating the
position that the sovereign in a civil war may exercise both sov
ereign and belligerent rights?
MR. SHELLABARGER. — I have looked through the authorities
on this subject, and in the modern and respectable authorities
of the world I find no dissenting voice. The doctrine will be
found not only in the text and notes of Wheaton, but in Vattel,
in Ward, in Halleck, and Bello.
MR. DEMING. — I would ask my friend if he has looked over
the notes in Lawrence's Wheaton for the purpose of seeing the
conflicting authorities which Lawrence there quotes on this spe
cific point ; that is to say, in a civil war it is incompetent for the
sovereign to exercise both civil and belligerent rights.
MR. SHELLABARGER. — I answer the gentleman that I have
looked through those notes carefully and thoroughly, and that
while, if my memory is not now at fault, I find some unimpor
tant conflict of authority, I do not find any conflict that at all
impairs the force of settled law as established in the prize cases.
Sir, it is a weak and inadequate statement of the truth to say
that he mocks the law, offends the loyal sense of the people, and
insults their common sense who affirms that that people or those
States had any rights of government in this Union, every man,
woman, and child of whom have been pronounced by two unani
mous judgments of the Supreme Court of the Republic to be,
in contemplation of the supreme law of the Republic and of the
law of nations, the public enemies of the United States.
Does the gentleman [Mr. Raymond] yet ask for "the spe
cific act" that deprived these States of all the rights of States,
and made them "enemies"? I once more answer him in the
words of the Supreme Court that the specific acts were, they
causelessly waged against their own Government a "war which
all the world acknowledge to have been the greatest civil war
known in the history of the human race. ' ' That war was waged
by these people "as States," and it went through long, dreary
years. In it they threw off and defied the authority of your
Constitution, laws, and Government ; they obliterated from their
State constitutions and laws every vestige of recognition of your
Government ; they discarded all official oaths, and took in their
places oaths to support your enemy's government. They seized,
in their States, all the nation's property; their Senators and
346 GREAT AMERICAN DEBATES
Representatives in your Congress insulted, bantered, defied, and
then left you; they expelled from their land or assassinated
every inhabitant of known loyalty; they betrayed and surren
dered your armies; they passed sequestration and other acts in
flagitious violation of the law of nations, making every citizen
of the United States an alien enemy, and placing in the treas
ury of their rebellion all money and property due such citizens.
They framed iniquity and universal murder into law. They be
sieged, for years, your capital, and sent your bleeding armies,
in rout, back here upon the very sanctuaries of your national
power. Their pirates burned your unarmed commerce upon
every sea. They carved the bones of your unburied heroes into
ornaments, and drank from goblets made out of their skulls.
They poisoned your fountains, put mines under your soldiers'
prisons; organized bands whose leaders were concealed in your
homes, and whose commissions ordered the torch and yellow
fever to be carried to your cities, and to your women and chil
dren. They planned one universal bonfire of the North from
Lake Ontario to the Missouri. They murdered by systems of
starvation and exposure sixty thousand of your sons, as brave
and heroic as ever martyrs were. They destroyed in the five
years of horrid war another army so large that it would reach
almost around the globe in marching columns ; and then to give
to the infernal drama a fitting close, and to concentrate into
one crime all that is criminal in crime, and all that is detestable
in barbarism, they killed the President of the United States.
Mr. Chairman, I allude to these horrid events of the recent
past not to revive frightful memories, or to bring back the im
pulses toward the perpetual severance of this people which they
provoke. I allude to them to remind us how utter were the
overthrow and obliteration of all government, divine and hu
man; how total was the wreck of all constitutions and laws,
political, civil, and international. I allude to them to condense
their monstrous enormities of guilt into one crime, and to point
the gentleman from New York [Mr. Raymond] to it, and to tell
him that was "the specific act."
Now, Mr. Chairman, if the combined forces of the Constitu
tion and the public law, the obvious dictates of reason, justice,
and common sense, and these enforced by the approval of re
peated and unanimous judgments of the Supreme Court can
settle for our own Government any principle of its law, then it
is established that organized rebellions are not "States," and
that these eleven distinct political treasons, which they organ
ized into one, and called it "the Confederate States," had no
CONGRESSIONAL RECONSTRUCTION 347
powers or rights as States of this Union, nor had the people
thereof.
RESTORATION OF THE STATES
If these States lost their powers and rights as States, by what
authority and means are they restored? Is it accomplished by
mere cessation of war and the determination of the rebel in
habitants to resume the powers of States; or is this Govern
ment entitled to take jurisdiction over the time and manner of
their return?
I hold that the latter is the obvious truth.
Let it be admitted that these rebel districts may, without the
assent of the United States, and without regard to the state of
their loyalty, resume, at pleasure, all the powers of States — this
Government having no jurisdiction to determine upon the ques
tion of their loyalty or the republican character of the new State
governments — then we have this result.
There were, during the first years of the war, twenty-three
rebel Senators, including Breckinridge and another. That was
more than one-third of the Senate. These twenty-three in the
Senate are enough to deprive the United States of all power
ever to make a treaty, or to expel a member from the Senate, or
to remove from office by impeachment a rebel Secretary of War
like Floyd, or a rebel Secretary of the Treasury like Cobb, or a
rebel United States judge like Humphreys, or an imbecile Presi
dent who thought secession unconstitutional, and its prevention
equally unconstitutional, like Buchanan. How long, sir, could
your Government survive with such a Senate, one-third rebel?
How long can you live deprived of these powers vital to every
government? Not a week, sir.
But, Mr. Chairman, this is precisely what might have oc
curred at any day during this rebellion if cessation of war en
titles the revolted States to resume the powers of States in defi
ance of the will of this Government ; and it is precisely what
may occur to-day if these States be indeed disloyal yet at heart.
If, after exhausting "all the resources of war" for the over
throw of the Government, and failing, it is, indeed, competent
for them to abandon these resources, and resort to "the re
sources of statesmanship," and resume at once the high powers
of States in the Union, without the assent of such Government,
then there has not been an hour since the rebellion began, and
the hour is not now, in which this Government has not literally
been in the power and at the mercy of the rebellion.
Is it replied to what has been said in regard to the power for
348 GREAT AMERICAN DEBATES
mischief of disloyal Senators in the case which I have stated,
expel them? the reply is vain, because the same twenty-three
who can prevent any impeachment or the formation of any
treaty are also enough to prevent any expulsion under the Con
stitution.
Is it again replied, exclude these rebels from the Senate un
der the clause making each House the judge of the elections and
qualifications of its members ? the reply is obviously frivolous.
1. If under this clause you may exclude a Senator duly
elected and qualified in every other respect and sense than that
he comes from and is elected by disloyal States, then you yield
the whole argument, and accord to this Government all the pow
ers of self-preservation which I am insisting upon. The differ
ence is that you find the power of self-protection under a clause
by which each House is compelled to judge separately of the
election and qualification of its members; and hence you occupy
a position where you may have twenty-four States in the Union,
in the Senate; thirty-four in the Union, in the House; and
Heaven knows how many in the Union for electing a President.
2. If you reply, I will reject these twenty-three rebel Sen
ators, not because their States can elect none, but because they
are "rebels," in the case you put; the reply is vain. When
Mason, Slidell, Davis, and Breckinridge last took their seats in
your Senate, who knew, or could have proved, that they came
there to embarrass and destroy your Government ? Could either
have been excluded from any known or ascertainable personal
disqualification ?
No, Mr. Chairman, there is no escape. If the United States
has no power to decide, as a great and sovereign people acting
through their Government, what shall be a ' ' State ' ' in her high
Union, and cannot determine when, out of the wreck and ruin
of old States, have been formed new republican States, based
upon the only foundations upon which a republican State of
this Union can be built, that of the general consent and loyalty
of its people, then indeed is your Government not so much as
"a rope of sand." It is a monster compelled by the organic
law of its life to terminate that life by self-slaughter.
But, sir, such is not the law of its life. I have already shown
that the President has discarded such conclusions. I now invoke
the authority of the highest court of the Republic, and by that I
show that it has decided this question also.
I state the effect of this decision in the language of a dis
tinguished law author (see 1 Bishop, Crim. Law; sec. 133). He
says:
CONGRESSIONAL RECONSTRUCTION 349
"It has been settled by adjudication (7 Howard, 42 and 43) that it is
for the President and the two Houses of Congress to decide whether a par
ticular government within a State is republican or not; and to recognize
it if it is, and to refuse to recognize it if it is not, and the adjudication
of the matter by them is conclusive and binds the courts and the nation.
It is not therefore for any class of persons in a State which has ceased to
have a government to set up a government of their own."
If it is asked me now, granting your position that these
States in revolt ceased to have any powers of government in the
Union, still have not new ones been reorganized safe and fit to
resume these high powers? I answer, sir, the question, ''is it
safe, and are they fit, ' ' are the stupendous facts now on trial by
the American Congress. It was the whole end of the feeble
argument which I have concluded to vindicate my Govern
ment's power to take jurisdiction of this inquest and to hold
this trial.
But if I am demanded by what standard of fitness, and what
guaranties for safety, Congress shall decide these great facts
now on trial, it will serve all the purposes of this argument and
this hour to reply that in the true and high sense and spirit of
the memorable words of the President of the United States I
find a fitting answer. He says:
"No State can be regarded as thoroughly organized, which has not
adopted irreversible guaranties for the rights of the freedmen. "
Mr. Chairman, let this noble utterance — "irreversible guar
anties for the rights" of American citizens of every race and
condition — be written with pen of iron and point of diamond
in your Constitution. Let it thus be made "irreversible" in
deed, by the action of the State, in the only way it can be made
irreversible ; and then, to establish this and every other guaran
ty of the Constitution upon the only sure foundation of a free
republic — the equality of the people and of the States — make,
by the same organic law, every elector in the Union absolutely
equal in his right of representation in that renovated Union, and
I am content.
Let the revolted States base their republican State govern
ments upon a general and sincere loyalty of the people and
come to us under the guaranties of this renewed Union, and we
hail their coming and the hour that brings them.
If you ask again, "Suppose such general loyalty should
never reappear, shall they be dependencies forever?"
Sir, convince me that the case is supposable, then with deep
est sorrow I answer — forever!
350 GREAT AMERICAN DEBATES
On January 9 Daniel E. Voorhees [Ind.], an extreme
State Eights Democrat, added to the embarrassment of
the Administration in its campaign for Republican sup
port by offering resolutions which praised the Presi
dent's message as an "able, judicious and patriotic State
paper" containing "the safest and most practicable"
policy which "can be applied to our disordered domestic
affairs," and which are also sound constitutionally, be
ing based on the principle that * * no State nor number of
States confederated together can in any manner sunder
their connection with the Federal Union."
The speaker repudiated the charge that the Demo
crats were supporting the President in order to secure
the spoils of office which were at his disposal.
Our action will be independent, with no desire, like the adroit
animal in the fable, to take advantage of the quarrel which now
rages among the voters to snatch away the feast over which
they are contending. For my part, as in the past, so in the
future, I shall pursue what I conceive to be the right, indiffer
ent alike to the allurements of reward or the terrors of reproach.
Mr. Voorhees charged that there was an organized
conspiracy in the Republican party to play the part of
Joab toward the President, saluting him with a kiss and
the kindly salutation, "How is it with thee, my brother?"
when their poniard's point was seeking a vital spot under
the fifth rib.
He further stated that Thaddeus Stevens [Pa.] was
the master spirit of this conspiracy, as shown by his in
stigation of the Special Committee of Fifteen, at whose
head had been placed a man (Senator William P. Fes-
senden) "who asserts that the Union was destroyed by
the war and that it remains so to this day."
By this movement, he said, we were asked to ravel to
pieces all that the President had done to restore the
Union.
The healing principles of the Constitution are, in my judg
ment, rapidly doing the needed work of restoration, and yet we
are at this stage of the process asked to break again the once
fractured limbs, to tear agape the half-closed wounds, and to
CONGRESSIONAL RECONSTRUCTION 351
cause the whole land to bleed afresh. Sir, I shall stand by the
physician who is working the cure, as against that blind and
fatal empiricism which first pronounces the patient dead and
then commences giving medicine.
Mr. Voorhees then attacked the Stevens theory that
the States lately in rebellion were "dead States. " He
charged that the theory had the sinister and ulterior
purpose of vengeance and revolutionary destruction.
Certain beasts of prey, we are told, prefer to find their
quarry ready slain, in order to feast upon it in comfort and
repose. And so the radical party of the country would find it
easier far to make its unnatural banquet on the rights, privi
leges, laws, liberties, and property of the South by declaring at
once that there is no living political community in all that wide
region to exclaim against the enormity. Its reasoning on this
point is that it is safer and less troublesome to rob a corpse than
it is to pick the pockets of the living. This is the highwayman 's
doctrine of convenience, introduced here now as a party plat
form. It is more and worse. It is an assertion that the Amer
ican Union itself is dead. While it claims that the Southern
States have destroyed themselves, yet it admits that, like blind
Samson of old, in their dying agonies they seized hold of the
pillars and tore the temple in ruins to its very foundations, and
that they in their desolation to-day are only a portion of the
general wreck. It is notice to the world that the war to restore
the Union was an utter failure — that the war is over and yet
the Union is rent in twain.
In what attitude before the civilized nations does this perni
cious heresy place the Federal Government ? If we were waging
war on an independent power, a separate existing nation, how
was it that we refused all negotiations for peace except upon
the basis of its utter annihilation ? Wars between different civi
lized powers are made to repair injuries, to resent insults, or to
reclaim rights which have been denied; but there is no law of
nations which justifies one government, because of its superior
strength, in inflicting obliteration and murder upon its inferior
neighbor. This doctrine is one of barbarism, in which the law
of force is the law of right. Much pathetic eloquence and many
bitter tears have attested the world's sympathy with Poland,
with Hungary, and with poor, poor Ireland, and maledictions
attend upon their destroyers; but with what curses of indigna
tion would an enlightened posterity and an impartial history
352 GREAT AMERICAN DEBATES
assail us for blotting out by sheer force of arms a nation of our
own kindred, who simply desired to possess their own in peace
and leave us to do the same !
Sir, in every aspect the theory which now controls the major
ity of this House is fraught with death and disgrace to the Re
public. I turn from its contemplation to a more cheerful theme.
I will contrast against it the conduct and principles of the Ex
ecutive, for which, I think, he deserves well at the hands of his
countrymen.
What was the wish, the hope, the prayer of every heart not
fatally bent on mischief, not an enemy to the human race, when
the last of the Southern forces laid down their arms? Was it
that this bitter period of strife should be prolonged and the fires
of hate and malice kept alive forever ? Was it that at the close
of such a hurricane, with the billows yet swelling in angry com
motion around us, we were to start afresh upon the long voyage
of political discovery and legislative piracy which the bold
mariner from Pennsylvania [Mr. Stevens] and his radical fol
lowers now, like Viking robbers of the ancient seas, point out
to us ? Was it not rather that the vessel should be brought back
and quietly and firmly anchored as nearly as possible at her old
moorings? Was it not rather that the corner-stones, boundary
lines, and landmarks of the fathers of the Republic should be
traced out and restored ? I here assert that when the President
closed the temple of Janus, refused to go in search of new prin
ciples by which to administer the Government, and extended the
hand of friendship and assistance to the crippled and bleeding,
though living, yes, living States of the South, he met the de
mands of the popular will, and laid claims to the gratitude of
the present and the future.
Mr. Voorhees denied that the President's appoint
ment of the provisional State governors was an usurpa
tion.
By his oath he must enforce the laws. He found States
without legal officers and unable to move forward in the chan
nel of their duties. A State of this Union when the Federal
laws are no longer obstructed cannot be in passive abeyance. It
is an integral part of the Federal body, and if the body be
sound there can be no paralysis among its members — they must
have vitality ; and in the performance of his duty the President
used the best means in his power to revive and restore their law
ful functions.
CONGRESSIONAL RECONSTRUCTION 353
The gentleman from Pennsylvania [Mr. Stevens] saw fit to
announce that the position of the President in regard to the
Southern States was "not an argument, but a mockery." I
partly dissent. I think it is both. It is an unanswerable argu
ment in behalf of the early and true principles of the Govern
ment, and it is also an overwhelming and consuming mockery of
the bloody designs, avaricious hopes, and greedy expectations of
all those who desired when the war was over to rule the people
of the South without the restraint of law; to humiliate them
with an iron rod; to confiscate their lands and buy them in at
nominal prices; to change the proprietorship of the soil and
drive into exile and destitution its present owners until a new
population should take control and, by the aid of the enfran
chised negro, plant a Puritan ascendency all over the South ;
who here now unfurl the banner of "territorial condition," be
cause all these consequences follow its triumph. Sir, this class
has been mocked, and God and angels and all good men rejoice
in their confusion. Their ascendency in this land would create
a pandemonium of discord and a carnival of all the dark and
cruel spirits of hate and revenge for generations to come.
But, Mr. Speaker, allow me to inquire whether this opposi
tion to the Executive is not a new discovery, an afterthought,
manufactured for a special purpose on the part of those who
adhered to and upheld the late administration of Mr. Lincoln
in regard to the continued existence and vitality of the Southern
States during the late rebellion. Are they not estopped from
this assault ? In more than a hundred ways and forms, by mili
tary orders, in his annual messages, instructions to our foreign
ministers, in letters and speeches to his own countrymen, and
especially by his numerous proclamations, the late Executive al
ways and at all times recognized the enduring existence of all
the States over which the American flag had ever floated.
The late chief of the great party of the North dealt with
American States, the people whereof were In rebellion, and not
with a foreign power subject to conquest ; and if his memory
is sacred to his followers, they should not insult it by pronounc
ing his policy a delusion and a mockery ere his untimely tomb
is fairly closed.
Sir, I am aware that many on the opposite side of the cham
ber do not indorse the destructive theory of the gentleman from
Pennsylvania, but who are nevertheless assisting to carry its re
sults into practice. They deny his premises that the States are
dead, but concur in his conclusion that they shall not be repre
sented 011 this floor. To my mind their position is the worst of
VII— 23
354 GREAT AMERICAN DEBATES
all. They embrace a consequence without a cause. They have
reached an end which has no beginning. They are standing on
a structure which has no foundation. While the premises of the
gentleman from Pennsylvania are unsound, yet his logic is true.
But those who refuse to follow him and yet deny representa
tion have neither premises nor logic. If the States are out of
the Union of course their Representatives are strangers to us,
but if they are in the Union what power can close these doors
against them except the power of lawless, revolutionary force ?
What madness is this which proposes to govern the people
of eleven American States, States ' ' included within this Union, ' '
without representation? Where on this side of the ocean has
been found such a monstrous principle of government? Its
adoption would carry us back to the days of King George, and
as fatally subvert liberty as if Cornwallis had triumphed on the
plains of Yorktown.
But the advocates of this doctrine say that this phase of ab
solute despotism is only to last for a season; that these States
are to go unrepresented only for a few years until guaranties
for the future are obtained. Guaranties for the future! This
vague term is another political convenience like that of "dead
States." Under it each innovator, dreamer, and revolutionist
throughout the land can demand and require the fulfillment of
all his fantastic desires against the South before he is willing to
admit her Representatives. It is the cloak for every higher-law
purpose now abroad in the public mind. It is a well-filled ar
senal from which to shower confiscation, negro suffrage, reap-
portionment, proscription of persons, and every other missile of
torture that was ever leveled at an unfortunate people.
Sir, I deny that to a State can be refused her representation
for a single moment on such grounds. Peace and obedience to
law are the only guaranties for the future which any govern
ment can justly require of its citizens. Where is the power in
the Constitution whereby anything more can be demanded? It
may be said that the President himself has required guaranties
in his policy of restoration. Even if he did so, I do not under
stand that he proposed to make their refusal a pretext for vio
lating the Constitution himself. But I have not regarded his
advice to the South in the nature of this movement in Congress.
On the great question of slavery I hold that the action of the
Southern States in adopting the constitutional amendment has
been wise and beneficent. The system was destroyed already by
the force of arms and the operations of war, but it is better for
the future dignity and history of the nation that a fact accom-
CONGRESSIONAL RECONSTRUCTION 355
plished of the utmost magnitude should have the sanction of
fundamental law. It was a vast step, too, toward a speedy
restoration, and that alone is a powerful appeal in favor of the
counsel of the Executive and the action of the South.
One other subject has been much canvassed under this new-
coined phrase of guaranties for the future. The war debt in
curred by the Southern States in their attempt to establish a
confederacy has been shaken in the face of the Northern people
to incite them to a policy of distrust and severity. Everybody
well knows, of course, that it will never be paid. All history
tells us that the debt of a defeated revolution is always lost.
The government that contracted it is no more, and the ruined
and exhausted people gladly turn their backs on the dead and
melancholy past and look forward to the future with new hopes,
new ties, and a new destiny. As to the victor in arms ever as
suming such a debt, no instance is known in the annals of man
kind, and such an idea is not respectable outside of an asylum
for the insane. I regard, therefore, the war debt of the South
as fit only for one use — the declamation of demagogues and the
malign purposes of political agitators.
But again, as to the right of representation, immediate and
without any other guaranty than obedience to the Constitution.
In the reconstruction proclamation of the late Chief Magistrate,
he clearly and explicitly asserts the right of any State, whose
people were then in hostility to the general Government, to be
represented in the Federal Congress, and announces that he will
consider such fact as an evidence that neither the State nor its
people are any longer in rebellion. Where then was the guar
anty doctrine? It had not yet been born. We were then woo
ing and courting representation because it suited our purposes
to do so. We are now repelling it for the same reason.
But it may be said that it is not within the province of the
executive department of the Government to determine the ques
tion of representation in the legislative department. But has
not Congress itself made a record on this subject which it can
not ignore and which the majority dare not face? Has it not
officially, over and over again, in both branches, assumed the
very position which it now seeks with such flagrant assurance
to repudiate ? The cry is now that we must look to Congress for
our policy of restoration. This place has suddenly become a
citadel of wisdom, power, and dominion. It is a city of refuge,
where all the disappointed spoliators, insane anarchists, bloody
Jacobins, promoters of vengeance, disturbers of the peace, self-
constituted saints who imagine themselves in partnership with
356 GREAT AMERICAN DEBATES
the Almighty to assist Him in punishing the sins of the world,
where law-breakers and revolutionists of every shade and color
now flee to escape from the wise, successful, and constitutional
policy of the President. "To your tents, O Israel!" was the
ancient and legitimate cry of alarm. "Look to Congress, look
to Congress!" now rings out on the air as a call to battle in
behalf of chaos, disorder, and interminable woes. The populace
of France, tossed in a tumultuous delirium of hate, drunken
with blood, dethroning Deity and reverencing a harlot, shouted,
"Look to the Assembly, look to the Assembly!" where the
Mountain murdered the Girondists, and where Robespierre,
Marat, and Saint Just planned, in the name of public virtue,
the destruction of human life and of human society. But, sir, if
we must "look to Congress," let me show the wistful gazers a
picture of congressional action which will fill their hearts with
dismay, and which Congress itself cannot to-day behold without
feelings of humiliation and shame over its present position.
Was Tennessee destroyed or were her people entitled to no
voice here because of her ordinance of secession ? Sir, her name
was called here during more than half the period of the war,
and the representatives of her people answered to their names
in both ends of the Capitol. The gentleman who in vain sought
even a recognition of his own existence in this body when the
present Congress was organized [Horace Maynard] was then
here with the full sanction of the same political majority which
now spurns him from the door of its caucus room, and drives
him from the protection which the escutcheon of his glorious
State, under the administration of law, affords its Representa
tives in Congress. Shall we now assert that at that time Ten
nessee was a portion of a foreign government? Shall we then
as the next step of supreme absurdity declare the President of
the United States himself an unnaturalized foreigner, a captive
to our lance and spear, entitled doubtless to kind treatment, but
in no sense a citizen of the United States, inasmuch as he never
expatriated himself from the alien and hostile province of Ten
nessee, and never acknowledged himself subdued to the em
braces of the Federal flag as the symbol of a separate national
ity? I am prepared to hear even this miserable libel on Amer
ican institutions asserted. Nothing is allowed to stand in the
way of fanaticism. Its purposes are inexorable, and its devotees
often deem themselves in truth and honesty the philosophers of
their age; but Frederick the Great made a wise observation
when he said, "If I wanted to ruin one of my provinces I would
make over its government to the philosophers." Their theories
CONGRESSIONAL RECONSTRUCTION 357
are always in advance of their times ; and in practical sense and
actual utility they meet neither the requirements of the past,
present, or future. The philosophers of Congress at least con
tradict themselves at very short stages of progress, and give no
evidence of either ability or consistency.
HENRY C. DEMING [Ct.]. — Will my distinguished friend
from Indiana [Mr. Voorhees] inform this House when he thinks
the right to representation here from these States commenced?
Did it commence at Antietam, at Gettysburg, or when did it
commence ?
MR. VOORHEES. — My answer is, ' ' Peace and obedience to law
are the only guaranties for the future which any government can
require of its people." And when peace and obedience to law
reign among any portion of the American people, I hold that
they are entitled to representation here.
MR. DEMING. — Then I suppose it will be necessary for the
gentleman to show that obedience to law exists at this time in
the reclaimed territories ?
MR. VOORHEES. — Undoubtedly. I think the President and
General Grant have shown that fact.
But one step further in this congressional record. As if to
settle forever the construction which should be placed upon the
condition of the Southern States, and their right to representa
tion, Congress enacted and the President approved a law on the
4th of March, 1862, which fixed the number of the House of
Representatives from and after that date.
In order to obtain the number of two hundred and forty-one
Representatives as contemplated by this law, every Southern
State whose citizens were in revolt must have been represented
according to her population. What more can I do than to make
this statement ? What argument could add to its binding force ?
If men will repudiate to-day what they did yesterday, if they
refuse to be bound by their own principles declared in the sol
emn form of a law, if the highest precedents of their own official
action fall without force upon their ears, then, indeed, they are
beyond the power of reason and callous to the reproach and de
rision of the world.
John A. Bingham [0.] replied to Mr. Voorhees. He
said that the theory of Mr. Voorhees was the one upon
which the secessionists had proceeded in their unsuccess
ful attempt to destroy the Union, and the one which the
" Peace Democrats M of the North had maintained dur-
358 GREAT AMERICAN DEBATES
ing the war, thereby aiding the secessionists. He denied
the assertion of Mr. Voorhees that Andrew Johnson, then
as Vice-President or now as President, upheld this the
ory.
In the very passage which the gentleman has read from the
message the President has said that "the functions of the rebel
States were suspended. ' ' Of course if the functions of a State
are suspended the powers of the State cannot be exercised. That
is the President 's position ; the very converse of it is the position
of the gentleman who comes here to introduce general resolu
tions of commendation of the President 's message !
Will the gentleman undertake by his mere platitudes to as
sert here that if by chance five thousand men in South Carolina,
lately in insurrection, choose to be represented in convention,
and in all things manifest a willingness to return to their al
legiance to the Constitution and Government of the United
States in good faith, it follows of necessity that the residue of
unrepentant insurgents in that State, whose hands are red with
the blood of their countrymen, have a right to representation
on this floor, and that, too, as provided by the act of 1862, to
which the gentleman referred, giving them six Eepresentatives
and two Senators ? I want an answer. Who undertakes to assert
any such thing, and who is to judge in this matter — the Con
gress or the President?
MR. VOORHEES. — Mr. Speaker, the easiest, and at the same
time most absurd, mode of argument is to suppose absurd things.
I just step back on the fact that General Grant has been down
there, and did not find any such state of things. That is suffi
cient for my argument at this time. Now, when you find a case
of only five thousand in the community willing to discharge
their duties, we will consider that.
MR. BINGHAM. — Well, the gentleman has given us about the
stoutest reason for his argument, I suppose, that he could find.
He stands behind the shadow of a mighty name. General Grant,
I believe, was one day in the State of South Carolina, if at all,
on that journey; I am not certain if he touched the borders of
the State at all. The gentleman thereupon concludes that it is
all right in South Carolina ; General Grant did not undertake to
say so. But the gentleman by his explanation concedes — and
that is enough for my purpose — that the representatives of the
people of the United States have some right to inquire.
The gentleman admits that he voted for the proposed amend
ment to the Constitution making it hereafter unconstitutional
CONGRESSIONAL RECONSTRUCTION 359
to assume any part of the debt contracted in aid of the late re
bellion, or of any debt which may hereafter be contracted in
aid of any rebellion against the United States.
"Well, sir, if the people of the United States are justified in
taking that one security for the future, are they not also jus
tified in taking such additional security for the future as will
bring in all the hereafter peace and prosperity to the South as
well as to the North, to the East as well as to the West ?
Oh, sir, it ought to have occurred to the gentleman, when he
was meditating his carefully prepared speech in commendation
of the President, that there appeared in that same message of
his an utterance which ought to attract the attention of this
House, and the attention of the whole country, and that was
when he reproduced the words which express the true intent and
meaning of the Constitution of the United States. " Equal and
exact justice to all men." That is the utterance of the Presi
dent in his message, an utterance which the gentleman found it
convenient to be quite oblivious of when he came to make up his
words of commendation. According to the political creed of
that party which proposes to take the President into its most
holy and jealous keeping, there is only to be equal and exact
justice secured to white men. [Laughter.] Yes, his party were
for equal and exact justice to white men, uttering the horrid
blasphemy all the while that this is a Government of white men.
I propose, with the help of this Congress and of the Amer
ican people, that hereafter there shall not be any disregard of
that essential guaranty of your Constitution in any State of the
Union. And how? By simply adding an amendment to the
Constitution to operate on all the States of this Union alike,
giving to Congress the power to pass all laws necessary and
proper to secure to all persons — which includes every citizen of
every State — their equal personal rights; and if the tribunals
of South Carolina will not respect the rights of the citizens of
Massachusetts under the Constitution of their common country,
I desire to see the Federal judiciary clothed with the power to
take cognizance of the question, and assert those rights by sol
emn judgment, inflicting upon the offenders such penalties as
will compel a decent respect for this guaranty to all the citi
zens of every State.
I undertake to say that the President of the United States
will be found cooperating with the representatives of the peo
ple in their endeavor to introduce into the Constitution not that
which will mar it, but that which will perfect it and enable the
people hereafter to secure and reap for themselves and for their
360 GREAT AMERICAN DEBATES
posterity forever the great ends for which that Constitution was
ordained.
I repel every insinuation or intimation, come from what
quarter it may, that the representatives of the people have mani
fested thus far the slightest disposition to interfere with the pre
rogatives, if gentlemen please so to term the powers, of the Ex
ecutive. I deny that the representatives of the people have
taken any step indicating any such purpose, or any purpose to
raise an issue or create a conflict between the President and
Congress. But I may say, further, that if the day ever comes
when the President of the United States finds in this House
no other supporters than those who combined together at Chi
cago in 1864 to bury him where they hoped that even the hand
of resurrection itself could never again find him, then God help
the President and save him from his friends. [Applause.]
There are two parties to the reorganization of these rebel
States. The President cannot constitute a State ; Congress alone
cannot constitute a State ; nobody upon earth can constitute an
organized, constitutional State of the Union but the people of
the United States, and the people of the proposed State co
operating. If the people of South Carolina do their part rightly
and well, to which end no enabling act is needed, as it is but
the exercise of the right of petition, which is guaranteed by the
Constitution, and which you can neither confer nor take away
by law, it will only then remain for Congress, upon her pre
senting a complete organization, to admit her to her equal posi
tion as a State within the Union, with full power to exercise
her restored functions and with full right to her equal repre
sentation in the Senate and House. The speedy restoration of
every State to its equal position, as soon as it can be done safely
for the Republic, is, I am sure, the purpose of this House and
of the President.
MB. STEVENS. — I want to know whether at the time the so-
called Confederate Government was a government in fact, was
organized and performed all the functions of government, the
laws then passed and the decrees then made are not binding
upon the people of the rebellious States?
MR. BINGHAM. — They may be if not in conflict with the laws
of the United States, and that people choose to submit to them
now that peace is restored. They are void under the Constitu
tion of the United States, as against the rights of any citizen
who did not assent to them. I doubt whether there can be
found upon this floor a single man who will deliberately say, if
the insurgent State of North Carolina, through her corrupt and
CONGRESSIONAL RECONSTRUCTION 361
treasonable judiciary, had decreed for the use of the Southern
Confederacy the confiscation of the property of that venerable
man, Pettigrew, who clung to the Constitution and cherished
the hope of restoration as he cherished the hope of a better life,
that the United States had not the power to reverse that de
cree and restore that property.
If South Carolina all this while was a State, with all the
powers of a State, within the Union, how can we reach any such
case? My learned colleague [Gen. Rutherford B. Hayes] knows
that the State of Ohio, when she legislates touching the trans
fer of real estate within her limits and among her citizens, and
without impairing the obligation of contracts, is beyond the
power of the Federal judiciary, and cannot be restrained therein
by the Federal Government.
With the explanation I have given his words I see no occa
sion to take issue with the President upon the status of the
States in rebellion, but admit that these States remained States
through the conflict for Federal purposes; that means that the
State lines remained, that the judicial districts remained intact,
so that when the war ceased in those States the Government of
the United States could administer justice in every one of those
States, and try therein all persons for crimes against the United
States therein committed. I do not feel disposed to admit, if a
citizen of South Carolina were to-day to commit treason against
the United States at Charleston, that he could not be there tried
for his crime ; nor if he committed his crime there last year that
he could escape trial when arraigned, on the plea that the dis
trict of South Carolina, previously prescribed by the law of the
United States, had ceased, either by his treason or by the treason
of others, to be a judicial district within a State.
I never was of that class of persons who believed or assented
to the position for a moment, and I do not know if there is any
one here who does, that all the people within the limits of that
confederacy were alien enemies. According to the Constitution
and laws of the United States Government, every man is re
sponsible for his own crime, and not for the crimes of others.
So that when the sovereignty of the country comes to be restored
— in Virginia and the Carolinas — the judiciary of the United
States are bound by their oaths to discriminate between those
who contributed by the compulsion of the bayonet to the sup
port of the rebellion and those who originated it and are the
guilty perpetrators of the great wrong. There is a wide differ-
mce between Jefferson Davis, the leader of the revolt against
the Union, who, to enter upon it, voluntarily broke his oath to
362 GREAT AMERICAN DEBATES
support the Constitution of his country, and that poor, poverty-
stricken conscript who served the confederacy of traitors only
because of compulsion, or to secure thereby his daily bread.
I have said enough, I think, on this subject to satisfy gentle
men that the President stands by the great body of this House
touching the status of the States. They need reconstruction.
Their functions are suspended. Something must be done to give
them an equal place in the Union. That is what the President
says and what the House says. Who shall judge whether that
which it was essential to do has been done at all, and, if done,
whether it has been done rightly? Who is to decide it? I say
it, without waiting to quote authorities, that the loyal people of
the loyal States, who saved the Union, and are represented on
this floor, are the final judges upon that question, and from their
decision there lies no appeal.
I propose to bring this whole question to an issue before the
House by offering the following as a substitute for the resolu
tion of the gentlemen from Indiana:
Resolved, That this House has an abiding confidence in the President,
and that in the future, as in the past, he will cooperate with Congress in
restoring to equal position and rights with the other States in the Union all
the States lately in insurrection.
And on that I demand the previous question.
MR. STEVENS. — I ask the gentleman from Ohio [Mr. Bing-
ham] to consent that this whole subject be referred to the Joint
Committee on Reconstruction.
MB. BINGHAM. — Very well, I will withdraw the call for the
previous question, and will move that the resolution with my
substitute be referred to the Joint Committee on Reconstruction.
And upon that motion I demand the previous question.
The question was taken ; and it was decided in the af
firmative — yeas 107, nays 32.
Henry J. Raymond [N. Y.] and William A. Darling
[N. Y.] were the only Republicans who voted with the
Democrats in the negative. This vote was extremely
significant. The Republican party as represented in the
popular Chamber of Congress had refused almost unani
mously to express their confidence in the President, who
but little more than a year before had received their
votes as Vice-President. The Administration, in its plan
to receive Republican indorsement of its policy of re-
CONGRESSIONAL RECONSTRUCTION 363
construction, had been utterly defeated. Henceforth the
Kepublican party was to be the Opposition.
Mr. Raymond in particular was bitterly disappointed.
Says Mr. Elaine:
Few members had ever entered the House with
greater personal prestige or with stronger assurance of
success. He had come with a high ambition — an ambi
tion justified by his talent and training. He had come
with the expectation of a congressional career as suc
cessful as that already achieved in his editorial life.
But he met a defeat which hardly fell short of a disaster.
He had made a good reply to Mr. Stevens, had indeed
gained much credit by it, and when he returned home
for the holidays he had reason to believe that he had
made a brilliant beginning in the parliamentary field.
But the speech of Mr. Shellabarger had destroyed his
argument, and had given a rallying point for the Repub
licans, so incontestably strong as to hold the entire party
in allegiance to principle rather than in allegiance to the
Administration. If anything had been needed to com
plete Mr. Raymond's discomfiture after the speech of
Mr. Shellabargjefpit was supplied in the speech of Mr.
Voorhees. He had been ranked among the most virulent
opponents of Mr. Lincoln's Administration, had been bit
terly denunciatory of the war policy of the Government,
and was regarded as a leader of that section of the
Democratic party to which the most odious epithets of
disloyalty had been popularly applied. Mr. Raymond,
in speaking of the defeat, always said that the Demo
crats had destroyed Johnson by their support, and that
he could have effected a serious division in the ranks of
Republican members if he could have had the benefit of
the hostility of Mr. Voorhees and other anti-war Demo
crats.
Three weeks after Mr. Shellabarger 's reply Mr. Ray
mond made a rejoinder. He struggled hard to recover
the ground which he had obviously lost, but he did not
succeed in changing his status in the House, or in secur
ing recruits for the Administration from the ranks of
his fellow Republicans. To fail in that was to fail in
364 GREAT AMERICAN DEBATES
every thing. That he made a clever speech was not de
nied, for every intellectual effort of Mr. Raymond ex
hibited cleverness. That he made the most of a weak
cause, and to some extent influenced public opinion, must
also be freely conceded. But his most partial friends
were compelled to admit that he had absolutely failed
to influence Republican action in Congress and had only
succeeded in making himself an apparent ally of the
Democratic party — a position in every way unwelcome
and distasteful to Mr. Raymond. His closing speech was
marked by many pointed interruptions from Mr. Shella-
barger and was answered at some length by Mr. Stevens.
But nothing beyond a few keen thrusts and parries and
some sharp wit at Mr. Raymond's expense was added to
the debate.
CHAPTEE XI
THE FIRST CIVIL EIGHTS BILL
Lyman Tmmbull [111.] Introduces in the Senate Bill to Protect All Per
sons in the United States in Their Civil Eights — Debate in the Senate:
Varying Views, by Sen. Trumbull, Peter G. Van Winkle [W. Va.],
Willard Saulsbury [Del.], James Guthrie [Ky.], Edgar Cowan [Pa.],
James H. Lane [Kan.], Jacob M. Howard [Mich.], Reverdy Johnson
[Md.], Charles Sumner [Mass.], Thomas A. Hendricks [Ind.], Garrett
Davis [Ky.], Daniel Clark [N. H.], William M. Stewart [Nev.], Lot M.
Morrill [Me.], John B. Henderson [Mo.], James B. Doolittle [Wis.),
Henry S. Lane [Ind.]; Bill Is Passed — Debate in the House: Varying
Views by James F. Wilson [la.], Andrew J. Rogers [N. J.], M. Russell
Thayer [Pa.], Charles A. Eldridge [Wis.], John A. Bingham [O.],
Henry J. Raymond [N. Y.] ; Bill Is Passed — The President's Veto-
Debate in the Senate: Sen. Trumbull; Congress Passes Bill Over Veto.
ON the same day (January 5, 1866) that he intro
duced in the Senate the bill for the extension
of the Freedmen's Bureau [see page 183] Ly
man Trumbull [111.] introduced a bill "to protect all per
sons in the United States in their civil rights and fur
nish the means of their vindication/'
As summarized by James G. Elaine in his "Twenty
Years of Congress " the provisions of the bill were as
follows :
It declared that "there shall be no discrimination in civil
rights or immunities among the inhabitants of any State or Ter
ritory of the United States, on account of race, color, or previ
ous condition of servitude; but the inhabitants of every race
and color shall have the same right to make and enforce con
tracts, to sue, be parties, give evidence, to inherit, purchase,
lease, sell, hold and convey real and personal property, and to
full and equal benefits of all laws and provisions for the secur
ity of personal property; and shall be subject to like punish
ment, fines and penalties, and none other — any law, statute,
ordinance, regulation, or custom to the contrary notwithstand
ing."
365
366 GREAT AMERICAN DEBATES
Any person who under any law, statute, or regulation of any
kind should attempt to violate the provisions of the act would
be punished by a fine not exceeding one thousand dollars or by
imprisonment not exceeding one year. Very stringent provi
sions were madef'and a whole framework of administration de
vised, by which the rights conferred under this enactment could
be enforce^, through "the judicial power of the United States/'
The jlistrict attorneys, marshals, deputy marshals of the United
Strfes, yxe* commissioners appointed by the circuit and terri
torial courts of the United States, the officers and agents of the
Freedmen's Bureau, and every other officer who was sufficiently
empowered by the President of the United States were, by the
act, specially authorized and required, at the expense of the
Uni^d States, to institute proceedings against every person who
sfyfruld violate its provisions, and "cause him or them to be ar-
.*"' rested and imprisoned for trial at such court of the United
States or territorial court as, by the act, has cognizance of the
CIVIL EIGHTS BILL
«
SENATE, JANUARY 12-FEBRUARY 2, 1866
Senator Trumbull brought forward his bill on Janu
ary 12, giving a clear exposition of its provisions.
It did not come up again until January 29, when Sen
ator Trumbull proposed (lest the term "inhabitant"
should be judicially construed to mean " citizen " in the
narrow political sense and thus nullify the purpose of
the bill) that the bill be amended so as to declare persons
native to the United States, excluding Indians not taxed,
1 ' citizens. ' ' He said that the bill was next in importance
to the Thirteenth Amendment abolishing slavery, of
which measure, indeed, it was an essential complement,
securing the freedom there declared.
There is very little importance^ the general declaration of
abstract truths and princijries^hiless they can be carried into
effect, unless the personj^mo are to be affected by them have
some means of ava^^^hemselves of their benefits. Of what
avail was the immortal declaration "that all men are created
equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the
jprt-suit of happiness," and "that to secure these rights gov-
FIRST CIVIL RIGHTS BILL 367
ernments are instituted among men," to the millions of the
African race in this country who were ground down and de
graded and subjected to a slavery more intolerable and cruel
than the world ever before knew? Of what avail was it to
the citizen of Massachusetts [Samuel Hoar], who, a few years
ago, went to South Carolina to enforce a constitutional right in
court, that the Constitution of the United States declared that
the citizens of each State shall be entitled to all the privileges
and immunities of citizens in the several States? And of what
avail will it now be thal^the Constitution of the United States
has declare;! that slavery shall not exist, if in the late slave-
holding *S?ates laws are to be enacted and enforced depriving
persons of African descent of privileges which are essential to
freemen ?
It is the intention of this bill to secure those rights. The
laws in the ex-slave States have made a distinction against per
sons of African descent on account of their color, whether free
or slave.
Here the speaker discussed the " black codes" of sev
eral Southern States [see page 190 ss].
The purpose of the bill under consideration is to destroy all
these discriminations, and to carry into effect the constitutional
amendment.
Has Congress authority to give practical effect to the great
declaration that slavery shall not exist in the United States? If
it has not, then nothing has been accomplished by the adoption
of the constitutional amendment. In my judgment, Congress
has this authority. It is difficult, perhaps, to define accurately
what slavery is and what liberty is. Liberty and slavery are
opposite terms; one is opposed to the other. We know that in
a civil government, in organized society, no such thing can
exist as natural or absolute liberty.
Civil liberty, or the liberty which a person enjoys in society,
is thus defined by Blackstone :
" Civil liberty is no other than natural liberty, so far restrained by
human laws, and no further, as is necessary and expedient for the general
advantage of the public. "
That is the liberty to which every citizen is entitled ; that is
the liberty which was intended to be secured by the Declara
tion of Independence and the Constitution of the United States
originally, and more especially by the amendment which has re
cently been adopted; and in a note to Blackstone 's Commen
taries it is stated that —
368 GREAT AMERICAN DEBATES
"In this definition of civil liberty it ought to be understood, or rather
expressed, that the restraints introduced by the law should be equal to all
or as much so as the nature of things will admit. "
Then, sir, I take it that any statute which is not equal to all,
and which deprives any citizen of civil rights which are secured
to other citizens, is an unjust encroachment upon his liberty;
and is, in fact, a badge of servitude which, by the Constitution,
is prohibited. We may, perhaps, arrive at a more correct defi
nition of the term "citizen of the United States" by referring to
that clause of the Constitution which declares that "the citizens
of each State shall be entitled to all privileges and immunities
of citizens in the several States." What rights are secured to
the citizens of each State under that provision? Such funda
mental rights as belong to every free person.
Here the speaker referred, in support of Ms conten
tion, to Joseph Story's "Commentaries on the Constitu
tion " and the decisions of the General Court of Mary
land in the case of Campbell vs. Morris (3 Harris and
McHenry, 535), of the Supreme Court of Massachusetts
(Abbott vs. Bayley, 6 Pickering 92), and of the case of
Corfield vs. Coryell (4 Washington's Circuit Court Re
ports, page 380).
The judge in the latter case, he said, went so far as
to declare that a person who is a citizen in one State, if
he goes to another, is entitled there to the elective fran
chise.
In my judgment, persons of African descent, born in the
United States, are as much citizens as white persons who are
born in the country, but it is competent for Congress to de
clare who are citizens.
PETER G. VAN WINKLE [W. Va.]. — Where is the authority
by law of Congress to make them citizens?
SENATOR TRUMBULL. — The Constitution of the United States
confers upon Congress the right to provide uniform rules of
naturalization.
SENATOR VAN WINKLE. — For the admission of foreigners.
SENATOR TRUMBULL. — Nothing is said about foreigners. More
than once that Congress by general act has naturalized a whole
people. There was an act of that kind in reference to the Stock-
bridge Indians, an act of that character making citizens of the
United States of the people of Texas and the people of Florida.
FIRST CIVIL RIGHTS BILL 369
Willard Saulsbury [Del.] considered the bill as one
of the most dangerous ever introduced in Congress. If
slavery could not be abolished without a constitutional
amendment, how could anything less than another such
amendment affect civil rights, over which the States had
just as exclusive control as they had over slavery until
the passage of the Thirteenth Amendment? The bill did
not fall under the provisions of that amendment, since
it referred to persons (free negroes) who were not af
fected by it. The bill, therefore, was wholly unconstitu
tional. The Republicans seemed to assume that any
legislation was constitutional which would help the for
mer slave.
I think the time for shedding tears over the poor slave has
well-nigh passed in this country. The tears which the honest
white people of this country have been made to shed from the
oppressive acts of this Government in its various departments
during the last four years call more loudly for my sympathies
than those tears which have been shedding and dropping and
dropping for the last twenty years in reference to the poor, op
pressed slave — dropping from the eyes of str brig-minded women
and weak-minded men, until, becoming a mighty flood, they have
swept away, in their resistless force, every trace of constitutional
liberty in this country.
Senator Saulsbury denied the assertion of Senator
Trumbull that the bill would have no political effect.
What are civil rights? What are the rights which you, I, or
any citizen of this country enjoys? What is the basis, the foun
dation of them all? They are divisible into but two classes;
one, those rights which we derive from nature, and the other
those rights which we derive from government.
Here you use a generic term which in its most comprehen
sive signification includes every species of right that man can
enjoy other than those the foundation of which rests exclusively
in nature and in the law of nature.
The right to vote is not a natural right ; I do not possess it
by nature, I only possess it by virtue of law. It pertains to me
as a citizen of my State ; and pertaining to me as a citizen of my
State, it is a civil right, and is a right of no other class or
character.
VII— 24
370 GREAT AMERICAN DEBATES
But the bill also provides that the persons affected shall have
* ' full and equal benefit of all laws and procedings for the secur
ity of person and property. ' '
What is property? It has been judicially decided that the
elective franchise is property. Leaving out the question of vot
ing, however, as a question of property, is it not true that under
our republican form and system of government the ballot is one
of the modes of securing property, one of the means by which
property is secured ? Your bill gives to these persons every se
curity for the protection of person and property which a white
man has. One of the authorities which the Senator read de
cides that the second section of the fourth article of the Consti
tution, which says that "the citizens of each State shall be en
titled to all privileges and immunities of citizens in the several
States," entitles a citizen of one State removing into another
to a right to vote after acquiring a legal residence in such State.
Was it for this reason and to secure this right to negroes that
the Senator amended his bill this morning by declaring that all
persons of African descent born in the United States shall be
citizens of the United States?
Mr. President, this bill not only proposes to assume control
over the laws which shall govern title to estates, but also to de
termine the persons who shall be entitled to enjoy estates and
property within the States, and if you can do this as to a por
tion of that property, any particular species of it, you can do so
as to the whole ; if you can regulate and govern in one particu
lar, you can govern in reference to all the property and all the
interests of the States. If you can determine who shall hold
property in a State then you can enact laws for the protection
of the owner in its possession. Then also you can determine
who shall not hold property within a State. If you can say who
shall sue or give evidence in the courts of a State, then you can
determine who shall not sue or give evidence in such courts.
Such an assumption of power on the part of Congress ought to
arouse the people of the whole country to a sense of impending
danger. Let them take warning in time. But, sir, this bill
positively deprives the State of its police power of government.
In my State for many years, and I presume there are similar
laws in most of the Southern States, there has existed a law
of the State based upon and founded in its police power, which
declares that free negroes shall not have the possession of fire
arms or ammunition. This bill proposes to take away from the
States this police power, so that if in any State of this Union
at any time hereafter there shall be such a numerous body of
FIRST CIVIL RIGHTS BILL 371
dangerous persons belonging to any distinct race as to endanger
the peace of the State, and to cause the lives of its citizens to be
subject to their violence, the State shall not have the power to
disarm them without disarming the whole population. Is this
within your constitutional power and authority? Where did
you got it ? Are the utterances which come to us from the high
est judicial tribunal, which sits but a few feet off, of no ac
count here? Are the declarations of those who assisted in
framing this Constitution to be of no avail here ? I suppose not,
for I suppose it is a foregone conclusion that this measure, as
one of a series of measures, is to be passed through this Con
gress regardless of all consequences. But the day that the Presi
dent of the United States places his approval and signature to
that Freedmen's Bureau bill and to this bill, he will have signed
two acts more dangerous to the liberty of his countrymen, more
disastrous to the citizens of this country, than all acts which
have been passed from the foundation of the Government to this
present hour ; and, if we upon this side of the chamber manifest
anxiety and interest in reference to these bills and the questions
involved in them, it is because having known this population all
our lives, knowing them in one hour of our infancy better than
you gentlemen have known them all your lives, we feel com
pelled by a sense of duty, earnestly and importunately it may
be, to appeal to the judgment of the American Senate, and to
reach, if possible, the judgment of the great mass of the Amer
ican people, and invoke their attention to the awful conse
quences involved in measures of this character. Sir, stop,
stop; the mangled, bleeding body of the Constitution of your
country lies in your path; you are treading upon its bleeding
body when you pass these laws.
But, sir, let me call your attention for a moment to what are
the powers of the States under the Federal Constitution, and
what it is they do not and never did intend to surrender to the
Federal Government.
"The Federalist" speaking on this subject says:
"The powers reserved to the several States will extend to all the ob
jects which, in the ordinary course of affairs, concern the lives, liberties,
and properties of the people, and the internal order, improvement, and
prosperity of the State."
I cite that to show that in the judgment of the men who
made the Constitution all these powers embraced in your bill
are reserved to the States and to the States exclusively, because
certainly they concern the lives, liberties, and properties of the
372 GREAT AMERICAN DEBATES
people. In the case of Gibbons vs. Ogden, 9 Wheaton, 203, the
court say, speaking of the police powers of a State :
"They form a portion of that immense mass of legislation which em
braces everything within the territory of a State not surrendered to the
general Government, all which can be most advantageously exercised by the
States themselves. Inspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce of a
State."
The speaker also declared the judicial powers con
ferred on the Federal Government by the bill to exceed
those granted in the Constitution, which extended only
"to all cases in law and equity arising under this Constitution, the laws
of the United States, and treaties made or which shall be made under their
authority. ' '
Suppose that an action of ejectment is instituted in any
State where free negroes are denied the right to testify, and
suppose that action of ejectment is against a free negro. He
wishes to prove that he has not been guilty of the trespass in
ejectment, and he proposes to prove it by a negro, and the court
say, l ' No ; under the law of this State that negro is not a com
petent witness." In such a case as that, this bill authorizes
the circuit or district court of the United States to take cogniz
ance of that action of ejectment, and the State courts are ex
cluded from its consideration. I ask, did that cause of action,
the right of A, a citizen of the State of Maryland, to sue an
other person in an action of ejectment, arise under the Consti
tution of the United States? Did it arise under any law of
Congress? Did it arise under any treaty? Certainly not. Yet
you propose to take a case arising under one of these from the
control of the State courts and give it to the district court of
the United States. On what ground? Simply because the
judge, in saying what evidence should go before the jury, says
that the negro cannot testify.
Sir, there cannot be a case of chicken stealing in any State
of this Union where freed negroes are not allowed to testify
that can, if this bill is to be operative and in force, be deter
mined in the State courts. All such cases will be subject to be
removed into the Federal courts.
If such consequences as these are to result from such enact
ments as this — and I honestly believe they are, if it is to be
operative — what becomes of the States of this Union? What
becomes of the powers of the States? What becomes of the
FIRST CIVIL RIGHTS BILL 373
rights of the States? Sir, they have not even the privilege of
administering their criminal laws; they have not the privilege
of saying who shall give evidence and who shall not in their own
courts; they have not the privilege of saying who shall hold
property and who shall not; they have not the power to pro
tect their own citizens against murder, rape, arson, any crime
that can be committed against them.
A Federal court hearing and determining a case of eject
ment between persons of the same State, brought to recover pos
session of land in the State in which both parties reside and
awarding a writ of possession! A Federal court hearing and
determining a case of larceny, the larceny being committed by
a free negro, and administering the criminal law of the State!
Surely
"Judgment has fled to brutish beasts
And men have lost their reason. "
How you gentlemen will like the infliction of this punish
ment when you come to my State, and one of these pet lambs
with a black skin shall be indicted for larceny, and you deprive
the State of the jurisdiction of trying it, and it is removed to
the circuit court of the United States or the district court of
the United States; how your Federal judge, if he be of the
same opinions with you, will like to carry that law into execu
tion ! Do you know what our law does with them ? It provides
for whipping his bare back. We have a whipping post in our
State, and I think it is the most efficient means I ever knew for
the prevention of thieving. How the humane feelings of all
New England would be shocked !
The sixth section provides very heavy penalties against any
marshal or officer who shall disobey or refuse to perform any of
the duties imposed by this act; and what is the power that it
gives to these marshals? They may call in the posse comitatus
or the bystanders, and they are all to be punished if they re
fuse to aid in making arrests. What did the honorable Senator
say, and what did other honorable Senators say, when the Fugi
tive Slave Law gave the power to the marshals to summon per
sons to make an arrest? They were horrified. What was their
language ? ' * Is thy servant a dog that he should do this thing ? ' '
Verily, not only the negro is as good in law as the white man
in your opinion of him, but he is much more favored and bet
ter protected.
The bill gives the power to commissioners of deputizing in
writing whomsoever they please to make these arrests. And
374 GREAT AMERICAN DEBATES
what does it do besides? It gives that fellow so deputized five
dollars for doing his dirty work. What will be the conse
quence? Arrests of innocent parties to pocket the fee. And
when they come to sue for assault and false imprisonment you
will not let the State hear the cause, but you remove it far from
our residences and our homes into the district or circuit court
of the United States!
But this is not all. The chairman of the Judiciary Com
mittee is still fearful that his free American fellow citizens of
African descent may suffer some deprivation of right or inflic
tion of wrong that may not be summarily and adequately re
dressed. He is fearfully apprehensive that there is some white
man that ought to be arrested who may escape, and hence he
provides in his bill that the President shall be authorized to
employ the land and naval forces the more efficiently to exe
cute its provisions. Poor fugitive white man. If you shall es
cape the pursuing and avenging army commanded by the lieu
tenant-general of the armies of the United States and attempt
to cross the briny deep, the navy, the entire navy, shall chase
you from the sea. Sir, your whole army and navy will be inade
quate to execute this unconstitutional law, if law this bill shall
become.
Senator Van Winkle thought that the scope of the
bill was wider than its framers realized.
It involves not only the negro race, but other inferior races
that are now settling on our Pacific coast, and perhaps involves
a future immigration to this country of which we have no con
ception, for a bill has been introduced at the other end of the
Capitol to strike out the word " white" from the naturalization
laws, so that we may expect to have an influx here of all sorts
of people from all countries. I need not pause to say that this
would be detrimental to the best interests of our country. I am
willing to receive among us, and always have been, those from
other countries who are calculated to make good citizens. I am
not and never have been willing to receive, if the discrimination
could be made, those whose mixture with our race, whether they
are white or black, could only tend to the deterioration of the
mass; and I avow myself now as opposed to the amendment
which is now before the Senate.
I believe there are certain fundamental and eternal princi
ples that lie at the foundation of society ; and, if you make these
people citizens of the United States, I should feel that they
FIRST CIVIL RIGHTS BILL 375
were entitled to the right of suffrage, and to granting them this
I am opposed.
I entertain what perhaps may be deemed peculiar ideas in
reference to the condition of society. I do not believe one word
of what the chairman of the Judiciary Committee read from
Blackstone yesterday. I think it is mere twaddle. I cannot
conceive of a state of nature such as is spoken of there. I know
not of people entering into society. It is never done and never
has been done. What I do think is this: I believe the consti
tution of society was given to man by the Creator at the time
it was instituted, and that whatever conditions were imposed
at that time are those to which men should endeavor to live up.
We hear a great deal about the sentence from the Declara
tion of Independence that "all men are created equal." I am
willing to admit that all men are created equal, but how are
they equal? Can a citizen of France, for instance, by coming
into this country acquire all the rights of an American, unless
he is naturalized ? I believe that the division of men into sep
arate communities and their living in society and association
with their fellows, as they do, are both divine institutions, and
that, consequently, the authors of the Declaration of Independ
ence could have meant nothing more than that the rights of citi
zens of any community are equal to the rights of all other
citizens of that community. Whenever all communities are
conducted in accordance with these principles, these very condi
tions of their prosperous existence, then all mankind will be
equal, each enjoying his equality in his own community, and not
till then. Therefore, I assert that there is no right that could
be exercised by any community of society more perfect than
that of excluding from citizenship or membership those who
were objectionable. I do not believe that a superior race is
bound to receive among it those of an inferior race if the min
gling of them can only tend to the detriment of the mass.
The mode in which it is proposed to effect the object of the
bill is neither constitutional nor legal. I was mistaken yester
day in saying that the language of the Constitution expressly
applied to the naturalization of foreigners ; but I was not wrong
in the conclusion that that clause was intended to apply to for
eigners only. I would remind the chairman of the committee
that the case he cited of the Stockbridge Indians was also the
naturalization of foreigners ; for we hold the Indian tribes to be
quasi- foreign nations; we, at least, make treaties with them,
which are confirmed by this body. The laws of naturalization
as they stand require a notice to be given and a renunciation
376 GREAT AMERICAN DEBATES
of the allegiance to all foreign powers, and require that notice
to be given two years before the application is made ; but there
is no provision of that sort in this proposition. Yet the Con
stitution requires that the laws of naturalization be uniform.
I should be very willing to have the question submitted in
some form to the people of the United States, whether they de
sire to admit to citizenship this class of persons; and I do not
confine it to the African race alone, but I include the races on
the Pacific coast that I have already mentioned, and others to
whom it is proposed to open the doors. I would like to see it
tested by a fair vote of the people of the United States whether
they are willing that these piebald races from every quarter
shall come in and be citizens with them in this country, and
enjoy the privileges which they are now enjoying as such citi
zens.
I refused to join the American party at the time of its first
formation because I thought it discriminated between natu
ralized citizens and native citizens. However much I might dis
approve of the naturalization law previously to that time, I felt
that, while these people were admitted under the law, they were
entitled to all the rights and privileges and the same treatment
as other citizens; and if these dusky people shall also be admit
ted to the rights of citizenship in such a way as I believe con
tains a fair expression of the people, and is according to the
Constitution, I pledge myself to treat them in the same way that
I was disposed to treat our naturalized citizens.
THE PRESIDING OFFICER. — The question is on the amendment
proposed by the Senator from Illinois.
SENATOR TRUMBULL. — No action having been taken upon that
amendment, I desire to withdraw it and to offer another in lieu
of it to the same purport, changing the phraseology. I move to
insert these words :
All persons born in the United States and not subject to any
foreign power are hereby declared to be citizens of the United
States, without distinction of color.
SENATOR JAMES GUTHRIE [Ky.]. — I will ask the Senator if
he intends by that amendment to naturalize all the Indians of
the United States?
SENATOR TRUMBULL. — Our dealings with the Indians not
taxed are with them as foreigners, as separate nations. I think
that it would be desirable that the bill should apply to the In
dians who are domesticated and pay taxes and live in civilized
society.
EDGAR COWAN [Pa.] . — I will ask whether it will not have the
FIRST CIVIL RIGHTS BILL 377
effect of naturalizing the children of Chinese and gypsies born
in this country?
SENATOR TRUMBULL. — Undoubtedly.
SENATOR COWAN. — Then I think it would be proper to hear
the Senators from California on that question, because that pop
ulation is now becoming very heavy upon the Pacific coast ; and
when we consider that it is in proximity to an empire containing
four hundred million people, very much given to emigrating,
very rapacious in their character, and very astute in their deal
ings, if they are to be made citizens and to enjoy political power
in California, then, sir, the day may not be very far distant
when California, instead of belonging to the Indo-European
race, may belong to the Mongolian, may belong to the Chinese ;
because it certainly would not be difficult for that empire, with
her resources, and with the means she has, to throw a popula
tion upon California and the mining districts of that country
that would overwhelm our race and wrest from them the do
minion of that country.
SENATOR TRUMBULL. — I should like to inquire of my friend
from Pennsylvania if the children of Chinese now born in this
country are not citizens?
SENATOR COWAN. — I think not.
SENATOR TRUMBULL. — I understand that under the naturali
zation laws the children who are born here of parents who have
not been naturalized are citizens. Is not the child born in this
country of German parents a citizen?
SENATOR COWAN. — The honorable Senator assumes that
which is not the fact. The children of German parents are citi
zens; but Germans are not Chinese.
SENATOR TRUMBULL. — The law makes no such distinction;
and the child of an Asiatic is just as much a citizen as the child
of a European.
JAMES H. LANE [Kan.]. — Most of the Indians of our State
have taken an allotment of lands, and our Supreme Court have
decided that, by the act of accepting the allotments, they have
separated themselves from their tribal relations; yet we do not
extend to them the right of citizenship.
SENATOR COWAN. — Mr. President, I am asked, with quite an
air of certainty on the part of the chairman of the Judiciary
Committee, whether the children of persons of barbarian races,
born in this country, are not from that very fact citizens of this
country. I am not prepared upon the moment to furnish au
thorities upon this point; but I am certainly very clear that
in Pennsylvania that is not the law, and never has been the
378 GREAT AMERICAN DEBATES
law; and to assert that it is the law, in my judgment, is to be
tray an utter want of comprehension, an utter inappreciation of
the fundamental principles which underlie the whole of our sys
tem. Who was it that established this Government ? They were
people who brought here the charter of their liberties with
them ; they were the freemen who emigrated to this country and
established these governments, and they established them under
charters legally granted them by the Crown of Great Britain
originally. By the terms of the charters they were the actual
possessors of the political power of the colonies, and they alone
had the right to say whom they would admit to a coenjoyment
of that power with them. It is true that the colonists of this
country, when they came here and established their govern
ments, did open the door of these privileges wide to men of
their own race from Europe. They opened it to the Irishman,
they opened it to the German, they opened it to the Scandi
navian races of the North. But where did they open it to the
barbarian races of Asia or of Africa? Nowhere. There may
be no positive prohibition; but the courts always administered
the law upon the basis that it was only the freemen who estab
lished this Government and those whom the freemen admitted
with them to an enjoyment of political power that were entitled
to it.
The identical question came up in my State — the question
whether the negro was a citizen, and whether he possessed po
litical power in that State — and it was there decided that he
was not one of the original corporators, that he was not one of
the freemen who originally possessed political power, and that
they had never, by any enactment or by any act of theirs, ad
mitted him into a participation of that power, except so far as
to tax him for the support of Government. And, Mr. President,
I think it a most important question, and particularly a most
important question for the Pacific coast, and those States which
lie upon it, as to whether this door shall now be thrown open
to the Asiatic population. If it be, there is an end to repub
lican government there, because it is very well ascertained that
those people have no appreciation of that form of government ;
it seems to be obnoxious to their very nature ; they seem to be
incapable either of understanding it or of carrying it out ; and I
cannot consent to say that California, or Oregon, or Colorado, or
Nevada, or any of those States shall be given over to an irrup
tion of Chinese. I, for my part, protest against it.
SENATOR TRUMBULL. — Does the Senator deny that the Fed
eral Government has authority to naturalize any person ; that it
FIRST CIVIL RIGHTS BILL 379
may provide by uniform laws of naturalization to naturalize
any foreigner?
SENATOR COWAN. — Yes. But I would ask the honorable Sena
tor whether there is not every distinction in the world between
the right of a man after naturalization and before. These stat
utes do not provide that a naturalized citizen shall not have all
the rights of every other citizen, but provide what his rights shall
be before naturalization, so that the power which the United
States originally had has nothing to do with the question.
SENATOR TRUMBULL. — I was looking at it as a question of
power. Whether it would be politic to do it is another question.
SENATOR COWAN. — Mr. President, that is neither here nor
there ; this is not an amendment to the Constitution of the United
States; this is an attempt to do without any power that which
it might be very questionable whether we ought to do even if
we had the power.
I may state that I have another objection to this bill at the
present time; and that is that the people of several States in
the Union are not represented here, and yet this law is mainly
to operate upon those people. I think it would be at least de
cent, respectful, if we desire to maintain and support this Gov
ernment on the broad foundation upon which it was laid,
namely, the consent of the governed, that we should wait, at
any rate, until the people upon whom it is to operate have a
voice in these halls.
I know it is said that those people are not in condition to be
allowed representation here. Mr. President, he who says the
people are not in condition asserts that this Government is a
failure. It rests entirely upon the people, and if the people
cannot be intrusted anywhere and everywhere throughout it,
then it is not the Government we supposed it was, and not the
Government it was intended to be. I admit that the American
people, like other peoples, are subject to periodical disturbances.
They may be led away by the arts of the demagogues, they may
be forced away by the power of de facto governments asserted
over them ; but if they are the punishment they receive is war.
When the question is put, it is put to the arbitrament of the
sword. That enters judgment and issues execution at the same
stroke ; and when the war is over the people are purged. When
the war is over it is too late to say that the people are guilty.
They have suffered the penalty of their folly, or their crime, or
what you may be pleased to call it, and it is time then to talk
about individuals, not people.
During the rebellion, it was questioned whether after the
380 GREAT AMERICAN DEBATES
war was over and after we had suppressed the rebellion the peo
ple would come back again to their allegiance and be part and
parcel of the Union as before. Have they not done it? The
result is a thing of which every American who loves his country
and who prides himself in this great Republic should be proud
of. If the Southern people, after their armies were beaten,
after they had lost everything in this game of war, had refused
to organize republican governments in unison with the Consti
tution and the laws, if they had still stubbornly refused to sub
mit, if they had refused to send Representatives to Congress
and Senators here, then you might have said that the people
were in default and that the people had failed ; but in my judg
ment those people have not failed; they have done, so far as I
can observe, everything that the most hopeful or sanguine man
could have expected them to do. I am afraid that we confound
with the people of the South another and entirely different
class. Unquestionably there are individual traitors there, and I
would a great deal rather see them indicted and punished than
hear so much about the ' * people. ' '
Who are rebels and traitors? Who are guilty men accord
ing to the theory of our law ? The presumption is that all men
are innocent until they are shown to be guilty. Every line of
our law is blazing with the light of that humane sentiment. The
words " traitor" and "rebel" are exceedingly glib upon the
tongues of certain gentlemen. A few minutes ago, it was al
leged here that every man who cannot take the present test
oath must necessarily be a rebel or a traitor. Mr. President, if
that delusion is persisted in, if that belief is to govern in the
councils of this Government, there is an end of the Republic. It
is not true in fact, and it is not true in law.
Do gentlemen pretend that single men, without an organiza
tion, without any governmental means, without any of the in
signia of power, can stand up and resist the government of a
State with all these means in its hands of enforcing its power ?
Surely not; and there was no other power in this Government
except the United States to which the loyal men in the South
could look, and the United States went out of possession and
left those people to the mercy of secession.
Mr. President, for two hundred years at least the doctrine
has been established, and established beyond question, that pro
tection and allegiance are reciprocal. I owe allegiance to this
Government, and it owes to me protection. If it refuses to pro
tect me, I am not to be punished because I do not yield it al
legiance. Let me suppose a delegation of Georgians, of Ala-
FIRST CIVIL RIGHTS BILL 381
bamians, or Mississippians, if you please, Union men, coming
here to this capital in the winter of 1860-61, and calling upon
Congress, and saying, ' * South Carolina has actually seceded ;
other States are about doing the same thing ; you should appro
priate money and provide means, you should authorize the Pres
ident to put down that attempted rebellion." What did Con
gress say? Read the record. They would not trust the Presi
dent. Then the delegation go to President Buchanan, and what
does he say ? "I cannot coerce a State ; I might suppress an in
surrection, but I have no means; I have no authority to call out
the militia.'7
What were these people to do? Just exactly what they did
do. They went back and told their people. "There is no help
from the United States; they are out of possession; the Presi
dent is recalcitrant, and Congress is wrangling and refusing to
trust him; we cannot have help; we must submit."
I refer to a chapter in Mr. Greeley's book, "The American
Conflict," as proof that there were more than one-half of the
men of the South who were opposed to secession. What I ob
ject to is that half should now be branded as criminals when
the only thing criminal they did was to get into difficulty and
into war, desolation, and destruction, because we, the Govern
ment of the United States, did not do our duty in their behalf.
Now, I come to the law: if the general Government allows
itself to be put out of possession, so that it cannot protect a
citizen, and a de facto government is over him, whatever he
does in obedience to that de facto government, and under its au
thority, is not treason.
A word as to the proper mode of treating these people. I
asked a Southern gentleman the other day, ' ' Suppose we get into
difficulty with England or France, which side would they
take?" "Why," said he, "nine out of every ten of them will
stand by the flag." Now, Mr. President, that is either true or
it is not true. If it is true that nine men out of every ten will
stand by the flag, then I say to assail them as rebels and traitors,
and to treat them as criminals, and to try to deprive them of
the rights they ought to have as inhabitants of free States, as
we are, is a gross outrage and one which will recoil upon our
heads. If they are not ; if they are in the condition which some
gentlemen like to represent them as occupying, then, sir, I want
to know whether you will bring them to reason, whether you
will bring them back to that affection which they ought to have
for this Government and its flag by such bills as this, which
invade rights that they of all other people have been taught
382 GREAT AMERICAN DEBATES
to consider as peculiarly belonging to the States and not within
the province of the Government to invade. Can you bring them
back by making laws which operate upon them when they are
not here? Can you bring them back by giving them the same
cause to rebel against you which Great Britain gave to your
ancestors? Can you bring them back here by legislating for
them and yet refusing them the right of representation? Can
you bring them back by amending the Constitution time and
again over their heads when you refuse to listen to their argu
ments here in the common councils of the country?
Mr. President, I know apprehensions are expressed. Appre
hensions of what? What can the people of those States do if
we treat them fairly and give them all their rights under the
laws ? What is the worst they can do ? Can they rebel again ?
If they are going to rebel again, you are putting them now
exactly in such a condition that they will before the world have
good cause. You are putting them precisely in that situation
when they can appeal to your enemies for assistance, and when
they will get it. When they ask England to protect them the
next time, and then when they seek an alliance with France
the next time, they will succeed. England will not pay fifty
millions more to keep her Lancashire poor from starving when
she can control the cotton fields of the Southern portion of these
United States. France will not much longer be bullied about
the Monroe Doctrine, when she, by joining with the South, may
help to tear this Republic in two and shear it of its greatness.
Then, I say, if the people would stand by the flag, give them
their rights; and, I say, if they will not stand by it, let us give
them their rights and let them do their worst, because they
will do it anyway. It is far safer to treat them according to
the laws that exist and do now exist without new ones to operate
upon them, made while they are not here, far safer than the
course we are pursuing. Are there no courts, are there no
juries, is there no machinery in the land by which individuals
can be punished, and only machinery by which the innocent,
the people, can be tortured and worried, and perhaps driven
into another rebellion?
Mr. President, I hope we shall take better counsel. I think
it cannot be disguised that just at this moment there is a grow
ing apprehension in the country that something is not right.
The soldier is beginning to ask why the country is not restored.
He says, "I fought the battles of the country long days and
dreary nights through a terrible war for the Union for the
purpose of saving the Republic one and indivisible. Why is it
FIRST CIVIL RIGHTS BILL 383
not restored?" Is there any resistance to this Government,
any refusal on the part of the people to put all the machinery
in motion? I tell you, Mr. President, when he asks this Con
gress why it is that all the hands are not tied, and all the
means of cementing it are not made use of, there will be a
terrible answer from him if he finds that we by our factious
course prevent this restoration.
What is it that binds now, I ask, the eleven States lately in
rebellion to this Union but the President? He is the only
piece of property they have in common with us. He stands like
a Colossus across this chasm which it is our business to fill up
and close forever. The bondholder, the man who loaned us
the money to carry on this war, the man who came up with
Fortunatus' purse, almost without stint, to furnish the sinews
of it, will begin to ask, why is the Union not restored ; where is
the obstacle, and what is the obstacle? Will it do to tell him
that the hearts of that people are not right? He will tell you
that you had better leave that to the means of Christian grace ;
it will be enough for him if they obey the laws, if they are
willing to submit themselves to the laws as other good citizens
do. It will not do to assert to him that they are not to be
trusted as the people, because he will tell you it was as the
people and upon the faith that they as the people would restore
the Government that he gave his money. It will not do either
to tell him and the soldier, too, that we are going to hold these
people as conquered provinces. The soldier will tell you that
that will do him no good; he did not fight for conquered prov
inces ; he did not fight to make his f ellowmen vassals and serfs ;
he fought to bring them back to brotherhood and freedom. He
wanted to make them to strengthen him and to aid him rather
than to be his enemies hereafter.
Jacob M. Howard [Mich.] insisted that the Civil
Eights bill was a necessary and constitutional corollary
of the Thirteenth Amendment. Without it the f reedman
would possess nothing but his " naked person, " and even
the liberty of this might be coerced by hunger on the
one hand and legislative limitation, both as to kind of
employment and wages, on the other.
There is no invasion of the legitimate rights of the States.
The bill contemplates nothing of the kind ; but it simply gives
to persons who are of different races or colors the same civil
384 GREAT AMERICAN DEBATES
rights. I sincerely trust that this nation, having by an expen
diture of blood and treasure unexampled in the history of the
human race, set the slaves in the United States forever free,
having employed this class of persons to the number of nearly
two hundred thousand in the prosecution of our just and right
eous war, will not now be found so recreant to duty, so wanting
in simple justice, as to turn our backs upon the race and say
to them, "We set you free, but beyond this we give you no
protection; we allow you again to be reduced to slavery by
your old masters, because it is the right of the State which
has enslaved you for two hundred years thus to do." Sir, let
me tell you and the Senators who have advocated the opposite
side of this question that, if we fail in this high duty, if we
fail to redeem this solemn pledge which we have given to the
slave, to the world, and in the presence of Almighty God, the
time is not far distant when we shall reap the fruits of our
treachery and imbecility in woes which we have not yet wit
nessed, in terrors of which even the Civil War that has just
passed has furnished no example.
Eeverdy Johnson [Md.] thought that the purpose of
the bill could be attained legally only by a constitutional
amendment, since the Supreme Court in the Dred Scott
case had held that negroes were not citizens under the
Constitution, although it did not so discriminate against
any other race. The bill, therefore, was in derogation of
State powers which were perfectly constitutional, such
as the discrimination in civic rights between aliens and
citizens, the police power, marriage laws, etc.
He asserted that Indians were citizens of the United
States; therefore, he said, they would come under the
provisions of the act.
The Indian tribes upon that portion of the American conti
nent that belonged to Great Britain were always subject to the
dominion of England. England could have done what she
thought proper to do with them, but all she did in the execution
of that, her sovereign right, was to prohibit them from entering
into any contracts in relation to their lands with any other
nation than England or the dependencies of England. When
we obtained our independence the whole authority that England
had over the tribes became vested in the United States; and
since then the uniform view that has been taken of the relation
FIRST CIVIL RIGHTS BILL 385
in which these Indians stand to the United States is that they
are but the wards of the United States. They have no sov
ereign power whatever; they are not a nation in the general
acceptation of that term; they cannot sell their lands without
the authority of the United States; they are not at liberty to
sell their lands to anybody but to citizens of the United States,
and under such regulations as the United States may impose.
If the honorable member will refresh his memory by con
sulting the case of Worcester vs. The State of Georgia, re
ported in 6 Peters, I think he will find that Mr. Chief Justice
Marshall, who gave the opinion of the court, deciding that the
legislation of Georgia or the acts of Georgia were unconstitu
tional, admits that the Government of the United States could
do with the Indians, as far as the question of power was con
cerned, just what it thought proper ; that the absolute dominion
was in the United States; the possessory title, with a quasi-do-
minion, was with the Indians, but that quasi-domimon was only
that they could sell their lands and were not subject to be
taxed by the United States, but only because the United States
themselves had agreed that they should have those rights; but
it was not pretended in that case that they were not citizens of
the United States. The result, therefore, would be that an In
dian child, born within the territorial limits of these tribes,
would be a citizen of the United States because the territory
is part of the United States. Nobody ever doubted that the
whole of the Indians who are subject to our control are now
located upon territory belonging to the United States, and the
result would necessarily follow, so far as citizenship depends
upon birth, that, if you make it depend upon birth, the child
who is born within the territorial limits of the United States,
whether that portion be or be not within the temporary or par
tial control of the Indians, would be a citizen of the United
States.
CHARLES SUMNER [Mass.]. — Allow me to ask the Senator
whether we do not always deal with the Indians through the
treaty-making power?
SENATOR JOHNSON. — We have done so, but not necessarily.
SENATOR SUMNER. — Is it not the habit?
SENATOR JOHNSON. — Certainly it is ; but I am dealing with it
now as a question of power. We have dealt with them as a
treaty-making power, but it is not because there ever was a
doubt that Congress could deal with them by legislation; and,
in point of fact, although we have dealt with them as a treaty-
making power, we have done so by making them make the
vn— 25
386 GREAT AMERICAN DEBATES
treaty. It is no treaty-making power in the ordinary accepta
tion of the term ; that is to say, the parties are not equal.
SENATOR SUMNEB. — With the Senator's permission, I will re
mind him that we act upon our treaties with the Indians in this
Chamber with precisely the same forms than we do upon our
treaties with the European powers, and they must be ratified
by a vote of two-thirds of this body.
SENATOR JOHNSON. — I understand that ; but what I mean to
say is, and I do not think the honorable member will contradict
me, that there is nothing in the Constitution of the United States
defining the treaty-making power, or in any other branch of it,
which says that Congress cannot legislate in regard to them.
Oil June 31 Thomas A. Hendricks [IncL] opposed the
bill. He said that the inclusion of Indians who were
taxed, and the exclusion of those who were not, was an
invidious distinction. He did not want to see property
introduced into the law as a requisite for citizenship.
Senator Trumbull replied that the Constitution had
already drawn the line in its provision for apportioning
representation in Congress and direct taxes.
Garrett Davis [Ky.j opposed the bill. It and the
Freedmen's Bureau bill were, like the Siamese twins,
connected with the same umbilical cord, the recognition
of negroes as citizens, which, if severed, would cause
their dissolution. This cord he proposed to cut. Bepeat-
ing many previous arguments against this vital prin
ciple he introduced a new one. If emancipation gave
citizenship, then the slaves emancipated by the Northern
States after the Eevolution were citizens. Were they or
their posterity so recognized? No. Would the Southern
States have agreed to the Constitution if they thought
that under it negroes would be recognized as citizens?
No. If negroes are now citizens, why pass a law declar
ing them such?
Senator Trumbull denied the facts as stated by Sen
ator Davis and quoted to the contrary the fourth article
of the Confederation and its ratification by all the South
ern States but two. Indeed, North Carolina at one time
permitted free negroes who were taxpayers to vote.
The Senator from Kentucky says, if they are already citi-
FIRST CIVIL RIGHTS BILL 387
zens by the Constitution, why do you declare it in a law? We
often pass laws to remove doubts, and I should like to remove
the doubt even from the mind of the Senator from Kentucky,
if that were possible.
Senator Davis replied:
The mere right to vote does not amount to citizenship.
Citizenship, under the Constitution, is something different from
what it was before the Constitution was formed. Before the
Constitution was formed every State made its own citizens;
every State coined its own money. Since the formation of the
Constitution there is but one power to coin money, there is but
one power to make citizens, and that is the Government of the
United States. The State of Illinois admitted unnaturalized
foreigners who had been resident in that State six months to
vote. Did the fact that Illinois permitted an unnaturalized for
eigner who had been resident there six months to take part in
her government make him a citizen of the United States? Not
at all.
My position is that this is a white man's Government. It
was made so at the beginning. The charters that were granted
by the different sovereigns of England to the various colonies
were granted to white men and included nobody but white
men. They did not include Indians. They did not include
negroes. When the troubles with the mother country com
menced in 1764, and culminated in revolution and a declaration
of independence in 1776, all of that protracted and important
transaction was by white men, and by white men alone. The
negro had nothing to do with it, no more than the Indian; he
was no party to it. It was not for his grievances that that
struggle was made; it was not to reform his wrongs that that
bloody war was waged ; it was not to establish a government in
which he was to be a party or a power that the Declaration of
Independence was enunciated to the world and the old Articles
of Confederation formed; it was not to make him a party to
our present Government that the Constitution was formed. He
was no party in the convention; he was not represented in the
convention which framed the present Constitution. It is a white
man's government. I say that the negro is not a citizen. He
may be made a citizen by power, but it will be in disregard
of principle.
Daniel Clark [N. H.] took issue with Senator Davis.
388 GREAT AMERICAN DEBATES
Before the Constitution was adopted the free black man
in my State was just as much a citizen as the white man; and
when delegates were chosen to the convention which adopted
the Constitution he had a right to vote, and undoubtedly did
vote, as well as the white man.1 They formed that Constitu
tion. In that Constitution there is nothing declaring that a
negro shall be a citizen of the United States, and there is noth
ing declaring that a white man shall be. They stand on the
same foundation. There is nothing declaring that the black
man shall not be a citizen, nothing declaring any distinction be
tween him and a white man.
And I may say, by the way, that slavery was never recog
nized by law in New Hampshire.
SENATOR DAVIS. — Have slaves not been bought and sold there ?
SENATOR CLARK. — Yes ; in one instance, at least, that I know
of; but I have looked and can find no law that ever recognized
a slave, nor any that set one free.
SENATOR DAVIS. — There is no law in Kentucky declaring
horses property, yet they are so recognized. How did you
people sell negroes?
SENATOR CLARK. — Very much as a man steals a horse.
SENATOR DAVIS. — Your people stole a negro and sold him ?
SENATOR CLARK. — I believe my people are like other people,
and, if they did steal and sell a negro, they did a great wrong
to the negro. No matter where slavery exists, be it in New
Hampshire or Kentucky, it is a violence and a wrong. [Ap
plause in the galleries.] I want to find why a negro is not a citi
zen, if the gentleman will tell me. If he will lay down his defini
tion, I want to see whether the negro did not comply with it and
conform to it so as to be a citizen.
SENATOR DAVIS. — Government is a political partnership. No
persons but the partners who formed the partnership are parties
to the government. Here is a government formed by the white
man alone. The negro was excluded from the formation of our
political co-partnership; he had nothing to do with it; he had
nothing to do in its formation.
WILLIAM M. STEWART [Nev.]. — Allow me to ask a question.
Is it a close corporation, so that new partners cannot be added ?
SENATOR DAVIS. — Yes, sir; it is a close white corporation.
You may bring all of Europe, but none of Asia and none of
Africa, into our partnership.
SENATOR CLARK. — Let us see, Mr. President, how that may
1 As a matter of fact they did so vote not only in New Hampshire but
in other States.
FIRST CIVIL RIGHTS BILL 389
be. Take the gentleman's own ground that government is a
partnership, and those who did not enter into it and take an ac
tive part in it cannot be citizens. Is a woman a citizen under
our Constitution?
SENATOR DAVIS. — Not to vote.
SENATOR CLARK. — I did not ask about voting. The gentle
man said a while ago that voting did not constitute citizenship.
I want to know if she is a citizen. Can she not sue and be sued,
contract and exercise the rights of a citizen?
SENATOR DAVIS. — So can a free negro.
SENATOR CLARK. — Then if a free negro can do all that, why
is he not a citizen except that the Dred Scott decision says
that
SENATOR DAVIS. — Because he is no part of the governing
power.
SENATOR CLARK. — I deny that, because in some of the States
he is a part of the governing power. The Senator only begs the
question; it only comes back to this, that a nigger is a nigger.
[Laughter.]
SENATOR DAVIS. — That is the whole of it. [Laughter.]
SENATOR CLARK. — That is the whole of the gentleman 's logic.
[Laughter.]
SENATOR JOHNSON. — Mr. President, but for the decision in
the Dred Scott case, to which allusion has been made, perhaps
the question would be free from all difficulty ; but, as the Senate
are already informed, the decision in that case was that, be
cause of the particular condition of the African, neither he nor
any of his descendants were citizens. The Senate will find, by
referring to that decision, that the court put it entirely upon
the ground that the Africans were imported into the United
States as slaves, and bought and sold as property, and, accord
ing to the view that the court took, all their descendants par
took of that condition; that is to say, they inherited the dis
qualification of the ancestor. The sins of the ancestor, if they
could be called sins, were visited upon the children. They
applied that principle by saying that the disqualification of
the ancestor because of his condition was to be visited upon the
children. It is very obvious, upon the reading of that opinion,
that the court would have come to a different conclusion, pro
vided the Africans had immigrated to the United States as
immigrants, instead of coming here as property. If they had
come as men and had not been brought in as chattels, then they
would have been citizens of the United States. It is also evi
dent that, if the Supreme Court had taken the view taken by
390 GREAT AMERICAN DEBATES
the honorable member who has just addressed the Senate [Mr.
Clark] , that there were in the States Africans or descendants of
Africans at the time of the adoption of the Constitution who
were citizens of the States in which they might be, they would
have been citizens of the United States. That is obvious, as I
think, from a paragraph in the opinion to which I invite the
attention of the Senate, which will be found in 19 Howard,
page 406.
The court say
"It is true that every person "
Without reference to color, black or white
"It is true that every person, and every class and description of per
sons, who were at the time of the adoption of the Constitution recognized
as citizens in the several States became also citizens of this new political
body, but none other; it was formed by them, and for them and their pos
terity, but for no one else. ' '
The error, therefore, that the court have committed, if they
have committed an error at all, a question that I do not pro
pose now to discuss, is not in the principle maintained by the
honorable member from New Hampshire, but in the historical
fact — were or were not negroes in the States of the United
States citizens of such States, all or any one, at the time the
Constitution was adopted?
But the Supreme Court have decided that negroes are not
citizens, and the decision stands before us. Whether it will be
recognized hereafter when the question arises in that tribunal
at any subsequent time is a matter that I do not propose now
to inquire into: there it is, and we have a right to suppose
that it may control subsequent decisions; and, if it does control
subsequent decisions, the result will be that this law will not
be operative.
But does it follow that these negroes cannot be made citi
zens? That would be an extraordinary condition for the coun
try to be in. Here are four million negroes. They are not
foreigners, because they were born in the United States. They
have no foreign allegiance to renounce, because they owed no
foreign allegiance. Their allegiance, whatever it was, was an
allegiance to the Government of the United States alone. They
cannot come, therefore, under the naturalizing clause ; they can
not come, of course, under the statutes passed in pursuance of
the power conferred upon Congress by that clause ; but does it
FIRST CIVIL RIGHTS BILL 391
follow from that that you cannot make them citizens; that the
Congress of the United States, vested with the whole legislative
power belonging to the Government, having within the limits of
the United States four million people anxious to become citi
zens, and when you are anxious to make them citizens, have no
power to make them citizens? It seems to me that to state the
question is to answer it.
SENATOR DAVIS. — Has the Government of the United States
any power that is not conferred upon it by the Constitution?
SENATOR JOHNSON. — Certainly not.
SENATOR DAVIS. — Where is the power in the Constitution, or
the provision in the Constitution, that gives the right to the
Government of the United States to make a citizen of a native-
born negro?
SENATOR JOHNSON. — I do not know that there is any particu
lar clause that says the child of a native-born negro is to be a
citizen, but it would be an extraordinary thing if under the judi
ciary clause it were not in the power of Congress to authorize
a native-born negro, to use the language of my friend from
Kentucky, to sue.
SENATOR DAVIS. — I reckon the language is good.
SENATOR JOHNSON. — I am not saying it is not good. I used
it because I was sure it was good, as you used it. I would not
have used it except upon your authority. [Laughter.]
SENATOR DAVIS. — You are getting modest.
SENATOR JOHNSON. — Now, Mr. President, if we can, by legis
lation, authorize the negro to sue, we are authorized to go one
step at least toward making him a citizen. If we can authorize
him to contract we take another step. If we authorize him to
testify we take another step ; and so to go on by assuming that
we authorize him to do every other act that a white man can
do, short of the right of voting, what is there in the Constitu
tion which denies us the power to stop when we come to the
exercise of that right? I can find nothing in the Constitution
which leads to that result. It is a necessary, incidental func
tion of a government that it should have authority to provide
that the rights of everybody within its limits shall be protected,
and protected alike. It would have been a disgrace to the
members of the convention, in my judgment, if they had looked
to the condition of things which now exists ; or, without looking
to that condition of things, if they had looked to the contin
gency sure to happen, and which was rapidly occurring at the
time when the question became a matter of political agitation,
that slavery would sooner or later be abolished by State legis-
392 GREAT AMERICAN DEBATES
lation or State action, and had denied to the Congress of the
United States the authority to pass laws for the protection of
all the rights incident to the condition of a free man.
SENATOR DAVIS. — I differ toto coelo from the honorable Sena
tor from Maryland upon this proposition. My opinion is that
the Constitution of the United States never intended to place
free negroes or slave negroes under the jurisdiction of the gen
eral Government at all; that the whole subject of free negroes
and of slave negroes is left by the Federal Constitution, and was
intended to be left by the Constitution, under the jurisdiction
and exclusive control of the several States.
SENATOR STEWART. — Have we not a provision which is now a
part of the Constitution which expressly provides that we may
legislate on this subject?
SENATOR DAVIS. — That provision is revolutionary. Have Con
gress and the legislatures of the States the right to change our
form of Government? Have they a right to establish a mon
archy? Have they a right to establish a presidency for life?
Have they a right to establish a Senate for lifetime, or a Senate
that would transmit its honors and its offices to their posterity ?
Sir, the power to change the Constitution is a power simply to
amend ; it is not a power to revolutionize ; it is not a power to
subvert; it is not a power to change our form of government.
On Friday Lot M. Merrill [Me.] replied to the charge
that the declaration of citizenship was revolutionary
legislation.
If there is anything with which the American people are
troubled, and if there is anything with which the American
statesman is perplexed and vexed, it is what to do with the
negro, how to define him, what he is in American law, and to
what rights he is entitled. Hitherto we have said that he was a
nondescript in our statutes; he had no status; he was ubiqui
tous; he was both man and thing; he was three-fifths of a
person for representation and he was a thing for commerce and
for use. In the highest sense, then, in which any definition
can ever be held, this bill is important as a definition. It de
fines him to be a man and only a man in American politics and
in American law; it puts him on the plane of manhood; it
brings him within the pale of the Constitution. That is all it
does as a definition, and there it leaves him.
It is not an enactment in the sense of the law. Everywhere
where the principles of law have been recognized at all, birth
FIRST CIVIL RIGHTS BILL 393
by its inherent energy and force gives citizenship. Therefore
the founders of this Government made no provision — of course
they made none — for the naturalization of natural-born citi
zens. Therefore, sir, this amendment, although it is a grand
enunciation, although it is a lofty and sublime declaration, has
no force or efficiency as an enactment. I hail it and accept it
simply as a declaration.
But, sir, this amendment is important in another aspect.
It marks an epoch in the history of this country, and from
this time forward the legislation takes a fresh and a new de
parture. Sir, to-day is the only hour since this Government
began when it was possible to have enacted it. Such has been
the situation of politics in this country — nay, sir, such have
been the provisions of the fundamental law of this country —
that such legislation hitherto has never been possible. Al
though I have said that by the fundamental principles of Amer
ican law all persons were entitled to be citizens by birth, we
all know that there was an exceptional condition in the govern
ment of the country which provided for an exception to this
general rule. So long as that provision in the Constitution
which recognized this exceptional condition remained the funda
mental law of the country, such a declaration as this would not
have been legal, could not have been enacted by Congress. But
the Thirteenth Amendment has destroyed slavery, this excep
tional condition, and therefore the present declaration of the;
result of that destruction is in order.
The Senator from Kentucky denounces as a usurpation this
measure, and particularly this amendment, this declaration. He
says it is not within the principles of the Constitution. That
it is extraordinary, I admit. There is no parallel, I have al
ready said, for it in the history of this country; there is no
parallel for it in the history of any country. The ancient re
publics were all exceptional in their liberty; they all had ex-
cepted classes, subjected classes, which were not the subject of
government; and therefore they could not so legislate. But
that it is extraordinary and without a parallel in the history of
this Government or of any other does not affect the character
of the declaration itself.
The Senator from Kentucky tells us that the proposition is
revolutionary, and he thinks that is an objection. I admit that
this species of legislation is absolutely revolutionary. But are
we not in the midst of a civil and political revolution which
has changed the fundamental principles of our Government in
some respects? Sir, is it no revolution that you have changed
394 GREAT AMERICAN DEBATES
the entire system of servitude in this country? Is it no revo
lution that now you can no longer talk of two systems of civili
zation in this country? Four short years back I remember to
have listened to eloquent speeches in this Chamber, in which
we were told that there was a grand antagonism in our institu
tions; that there were two civilizations; that there was a civili
zation based on servitude, and that it was antagonistic to the
free institutions of the country. Where is that? Gone for
ever. That result is a revolution grander and sublimer in its
consequences than the world has witnessed hitherto.
But, sir, the Constitution even provides for revolutionizing
itself. Nay, more, it contemplates it; contemplates that in the
changing phases of life, civil and political, changes in the fun
damental law will become necessary, and is it needful for me
to advert to the events of the last four or five years to justify
the declaration that revolution here is not only radical and
thorough, but the result of the events of the last four years?
Of course I mean to contend in all I say that the revolution
of which I speak should be peaceful, as on the part of the
Government here it has been peaceful. It grows out, to be
sure, of an assault upon our institutions by those whose pur
pose it was to overthrow the Government; but on the part of
the Government it has been peaceful, it has been within the
forms of the Constitution; but it is a revolution nevertheless.
But the honorable Senator from Kentucky insists that it is
a usurpation. Not so, sir. Although it is a revolution, radical,
as I contend, it was not a usurpation, because it took place
within the provisions contemplated in the Constitution. More
than that, it was a change precisely in harmony with the gen
eral principles of the Government. The change which has been
made has destroyed that which was exceptional in our institu
tions; and the action of the Government in regard to it was
provoked by the enemies of the Government.
But, Mr. President, it is said that this amendment raises
the general question of the antagonism of the races, which we
are told is a well-established fact. It is said that no rational
man, no intelligent legislator or statesman, should ever act with
out reference to that grand historical fact ; and the Senator from
Pennsylvania [Mr. Cowan] on a former occasion asserted that
this Government, that American society, had been established
here upon the principle of the exclusion, as he termed it, of
the inferior and the barbarian races. Mr. President, I deny that
proposition as a historical fact. There is nothing more inac
curate. No proposition could possibly be made here or any-
FIRST CIVIL RIGHTS BILL 395
where else more inaccurate than to say that American society,
either civil or political, was formed in the interest of any race
or class. Sir, the history of the country does not bear out
the statement of the honorable Senator from Pennsylvania.
Was not America said to be the land of refuge? Has it not
been since the earliest period held up as an asylum for the
oppressed of all nations? Hither, allow me to ask, have not
all the people of the nations of the earth come for an asylum
and for refuge? All the nations of the earth and all the vari
eties of the races of the nations of the earth have gathered
her. In the early settlements of the country the Irish, the
French, the Swede, the Turk, the Italian, the Moor and so I
might enumerate all the races and all the variety of races,
came here, and it is a fundamental mistake to suppose that
settlement was begun here in the interests of any class or con
dition or race or interest. This Western continent was looked
to as an asylum for the oppressed of all nations and of all
races. Hither all nations and all races have come. Here, sir,
upon the grand plane of republican democratic liberty, they
have undertaken to work out the great problem of man's capac
ity for self-government without stint or limit.
Then the honorable Senator advances one step further, and
contends that not only was society formed in the interests of a
race — the superior race, as he is pleased to call it — but that
government here was organized in the interests of a race. I
deny it utterly. I deny that government was organized in the
interest of any race or color, and there is neither "race" nor
"color" in our history politically or civilly — not a bit of it.
Is there any "color" or "race" in the Declaration of Inde
pendence, allow me to ask? "All men are created equal" ex
cludes the idea of race or color or caste. There never was in
the history of this country any other distinction than that
of condition, and it was all founded on condition.
We have been told, Mr. President, that this question of race
was clearly recognized and settled in a case that was before
the Supreme Court some years ago — the Dred Scott case, so
called. But, as has already been pointed out by Senator John
son, that decision expressly recognized that exclusion from citi
zenship was based on a former condition, namely servitude, and
not on race.
JOHN B. HENDERSON [Mo.]. — An individual of the Caucasian
race, whether he pays a tax in a State or not, is undoubtedly
regarded as a citizen of the United States. Why make it oblig
atory upon the Indian, owing no allegiance to any tribal author-
396 GREAT AMERICAN DEBATES
ity, to pay a tax before he can be regarded as a citizen of the
United States? As the Senator from Indiana [Mr. Hendricks]
very properly remarked, the United States citizenship in that
case is dependent upon nothing except the possession of prop
erty upon which a tax is actually paid. I suppose that, accord
ing to the rule adopted in the amendment, a State ought to be
permitted to exclude any white man from taxation, and by so
doing to deny him the rights of citizenship. Why not?
My point is that the Indian, if he is connected with no tribe,
whether he is taxed or not, ought to be a citizen of the United
States. What harm can there be in declaring that fact ? What
injury can it do? The State need not admit him to the fran
chise. He may be a citizen of the United States, and yet not
have all the privileges and all the immunities of a citizen of
the State in which he may be. The State may deny him any of
them that it chooses to deny. But why not declare him a citi
zen of the United States? What harm can there be in that?
It will enable him to sue in the courts of the United States to
enforce his rights there, and I cannot see for my part what else
it will do. As the Constitution now stands, of course the State
cannot be injured in any of its reserved powers.
It can certainly do none of the States any harm to declare
that the Indian himself, owing no allegiance to any tribe, and
thereby not falling within the exception of the amendment as
owing allegiance quasi to a foreign power (regarding the In
dian tribes as foreign powers), shall be regarded as a citizen
of the United States. Now that we are fixing the law on the
subject, why not declare every man born in the United States
to be a citizen of the United States, irrespective of race or
previous condition?
Ought Georgia, or Florida, or Virginia, or any other State
have the power to say, "We will not tax the negroes, and
thereby nullify the declaration of the United States Congress
that they are citizens of the United States"? If the mere fact
of paying a tax in the respective States shall confer citizenship,
why not make that applicable to the negro as well as the
Indian? Why discriminate when laying down a great and
broad principle?
JAMES R. DOOLITTLE [Wis.]. — If you make the Indians citi
zens, they will not only have the privileges of citizens, but they
will be subjected to the duties of citizens. They will not only
have the right to sue, but they will be liable to be sued. They
will not only have the right to make contracts, but they will be
bound by their contracts; and that is a policy which the Gov-
FIRST CIVIL RIGHTS BILL 397
eminent has resisted from the beginning in its dealings with
the Indians, except with those Indians who have become citi
zens and liable to be taxed. Then they are regarded as citizens
of the United States. Without going into the argument at
length, I am decidedly of the opinion that, if by declaring the
Indians to be citizens you are going to bind them by their con
tracts and permit them to be sued as other citizens are in the
courts of the United States, the Indians are not yet prepared
for citizenship.
So far as relates to the Indian population, they can be pro
vided for specially by other acts of Congress when the question
shall arise.
SENATOR TRUMBULL.— What does that phrase ' ' excluding In
dians not taxed ' ' mean ? The Senator from Missouri understands
it to be a property qualification to become a citizen. Not at all.
It is a constitutional term used by the men who made the Con
stitution itself to designate, what ? To designate a class of per
sons who were not a part of our population. That is what it
means. They are not counted in the census. They are not re
garded as a part of our people. The term ' * Indians not taxed ' '
means Indians not counted in our enumeration of the people of
the United States.
SENATOR JOHNSON. — Considered virtually as foreigners.
SENATOR TRUMBULL. — Considered virtually as foreigners, as
a description of persons connected with those tribes with whom
we make treaties. That is what the phrase means. Whenever
they are separated from those tribes, and come within the juris
diction of the United States so as to be counted, they are citi
zens of the United States. The Senator wants to know why, if
an Indian cannot be a citizen without being taxed, should a
white man or a negro be a citizen without being taxed ? If the
negro or white man belonged to a foreign government he would
not be a citizen ; we do not propose that he should be ; and that
is all that the words " Indians not taxed," in that connection,
mean.
Senator TrumbulPs amendment to the bill, declaring
natives of the United States, excluding Indians not taxed,
to be citizens, was passed by a vote of 31 to 10.
On Friday, the 2nd, Senator Davis returned to his
fundamental proposition : that the negro, per se, without
regard to his present or previous condition of servitude,
was excluded by the Constitution from citizenship and
398 GREAT AMERICAN DEBATES
therefore tliaf a declaration that a free negro was a
citizen was void and if made a part of the Constitution
would be revolutionary. He asked Senator Johnson to
point out the constitutional rule that made a distinction
between a free negro and a slave negro in this respect.
Senator Johnson again referred him to the statement
concerning the matter in the Dred Scott discussion. Sen
ator Davis replied that this was an obiter dictum, an
expression of an opinion which was not a part of the
decision.
The honorable Senator is the ablest living lawyer in the
land. I have seen gentlemen sometimes so much the lawyer
that they had to abate some of the statesman. [Laughter.] My
honorable friend knows that, when an opinion is rendered by a
court, the opinion is authority only upon the question before
the court. It has often been assumed that Lord Mansfield, in
the celebrated case of Sommersett, decided that slavery did not
and could not exist in England. He decided no such prin
ciple. Indeed, if his obiter dicta had the force of a decision,
which they had not, he decided diametrically the reverse. He
said expressly that slavery existed in every English colony in
America, that property in slaves was then recognized in Eng
land, and that the sale of slaves was a good and sufficient con
sideration to uphold a contract and a suit and a recovery upon
that contract in Westminster Hall. But his sole valid decision
was that there were laws in England passed by Parliament
that were incompatible with the owner of Sommersett taking
him forcibly from England back to a slave colony in the West
Indies; that these laws required him to issue a writ of habeas
corpus discharging Sommersett. He said, furthermore, that,
but for those laws, he would not have granted the writ of
habeas corpus, and it would have been impossible to do so.
But I go on; I beg pardon for this digression. I maintain
that a negro cannot be made a citizen by Congress; he cannot
be made a citizen by any naturalization laws because the natu
ralization laws apply to foreigners alone. No man can shake
the legal truth of that position. They apply to foreigners alone ;
and a negro, an Indian, or any other person born within the
United States, not being a foreigner, cannot be naturalized;
therefore they cannot be made citizens by the uniform rule
established by Congress under the Constitution, and there is no
other rule. They could not be made citizens by treaty. If
FIRST CIVIL RIGHTS BILL 399
they are made so at all, it is by their birth, and the locality
of their birth, and the general operation and effect of our Con
stitution. If they are so made citizens, that question is a judi
cial question, not a legislative question. Congress has no power
to enlarge or extend any of the provisions of the Constitution
which bear upon the birth or citizenship of negroes or Indians
born in the United States. All the provisions, all the prin
ciples, all the rights which the Constitution established in rela
tion to those matters are fixed, immutable as the Constitution
itself, and Congress by no ancillary legislation can enlarge the
effect or the operation of any of those provisions or principles
of the Constitution, or of any rights that could be claimed
under them. Then, if a negro is a citizen of the United States
at all, he is a citizen by birth and by operation of the Constitu
tion, and his rights are not to be increased or fortified, nor can
they be weakened or restricted or diminished by congressional
legislation. He holds them by a higher warrant than any law
of Congress. He holds them by the Constitution of the United
States. That Constitution cannot be interpreted, even, much
less can it be expanded or restricted by a law of Congress.
But, admitting that Congress could declare negroes
citizens against State laws and regulations to the con
trary, the Senator said that thereby the bill became un
constitutional on another point, namely, that it dis
criminated in favor of one class of citizens (negroes),
against another (whites) in that special provisions were
made to enforce the rights of the former class, and that,
too, by military instead of civil power.
When, sir, was such partiality ever shown for the white man,
the sovereign, citizen, and lord of this land — him who made
the Government, who won its independence, who established, as
he thought, the deep and firm foundations of a free Government
in a written Constitution, and whose mission it is to uphold and
to defend that Government for himself and for his latest pos
terity? When was such partial, unjust, and iniquitous legisla
tion devised for the white man who achieved all this good for
his country and for the world? Never, never. But the negro
and his insane friends bring up now for the first time such mon
strous legislation.
If these are to be the results of the war, better that not a
single man had been marshaled in the field nor a single star
400 GREAT AMERICAN DEBATES
worn by one of our officers. These military gentlemen think
they have a right to command and control everywhere. They
do it. They think they have a right to do it here, and we are
sheep in the hands of our shearers. We are dumb.
Mr. President, I do not know how soon, for my action on
the present occasion, I shall be compelled to silence by the
military power of my country, by the men who ought to be
subordinate to the civil power. When the Father of his Coun
try surrendered his military commission, his proudest and most
glorious boast was that he had always kept the military sub
ordinate to the civil power. Times have changed. The mili
tary power is now rampant and triumphant, and all we have
to do is to bow our heads. But I live in the hope that a better
day is coming, when the proudest military man in the land,
with all his bloody laurels, will find that he is but an instrument
in the hands of the law, and that he has to yield the same
submission to the law that the humblest citizen of the land
does.
SENATOR TRUMBULL. — If the Senator from Kentucky has sat
isfied the Senate that he is dumb, I presume he has satisfied the
Senate of all the other positions he has taken ; and the others are
just about as absurd as that declaration. He denounces this
bill as ''outrageous," "most monstrous," "abominable," "op
pressive," " iniquitious, " "unconstitutional," "void."
Now, what is this bill that is obnoxious to such terrible
epithets? It is a bill providing that all people shall have equal
rights. Is not that abominable? Is not that iniquitous? Is
not that most monstrous? Is not that terrible on white men?
[Laughter.]
Sir, this bill applies to white men as well as black men. It
declares that all persons in the United States shall be entitled
to the same civil rights, the right to the fruit of their own
labor, the right to make contracts, the right to buy and sell,
and enjoy liberty and happiness; and that is abominable and
iniquitous and unconstitutional! With what consistency and
with what face can a Senator in his place here say to the
Senate and the country that this is a bill for the benefit of
black men exclusively when there is no such distinction in it,
and when the very object of the bill is to break down all dis
crimination between black men and white men?
Now, sir, what becomes of all the Senator's denunciation?
The bill is applicable exclusively to civil rights. It does not
propose to regulate the political rights of individuals; it has
nothing to do with the right of suffrage, or any other political
FIRST CIVIL RIGHTS BILL 401
right ; but is simply intended to carry out a constitutional pro
vision and guarantee to every person of every color the same
civil rights.
But, says the Senator, it breaks down the local legislation
of all the States; it consolidates the power of the States in the
Federal Government. Why, sir, if the State of Kentucky makes
no discrimination in civil rights between its citizens, this bill
has no operation whatever in the State of Kentucky. Are all
the rights of the people of Kentucky gone because they cannot
discriminate and punish one man for doing a thing that they
do not punish another for doing? The bill draws to the Fed
eral Government no power whatever if the States will perform
their constitutional obligations.
The Senator goes on to say that there is no authority in
the Congress of the United States to declare a person a citizen
except it be by way of naturalizing a foreigner, and this in
face of precedents I had shown him to the contrary.
SENATOR DAVIS. — I did not say there was no precedent for it.
In my opinion, the precedents were inadvertently passed, and,
at any rate, they were outside of the power of Congress.
SENATOR TRUMBULL. — The Senator chooses to regard every
thing to be outside of the power of Congress by denouncing it as
such. As I said, his speech is made up of these denunciations.
He is troubled about amalgamation, and becomes excited and
vehement in talking about it. I should have supposed that at
his time of life he would feel protected against it without any
law to put him in the penitentiary if he should commit it.
[Laughter.] Sir, we need no law of the kind where there is no
disposition for this amalgamation. I apprehend that if the
States prefer to pass laws on that subject
SENATOR DAVIS. — Why did your own State pass such a law?
SENATOR TRUMBULL. — Does not the Senator from Kentucky
know that we have a great many Kentuckians in Illinois?
[Laughter.] A great many of his people settled nearly the
whole of the lower part of my State, and, as they came over
from under such a law and had to be restrained at home, we
were afraid to risk them when they got into Illinois. [Laugh
ter.] But, sir, now that Egypt l is redeemed, I do not think
there will be any necessity for continuing that act in my State.
[Laughter.]
SENATOR GUTHRIE. — If this bill passes, all the Southern
States must remodel their laws upon the subject of offences. I
would advise that there should be but one code for all persons,
1The lower part of Illinois.
VII— £6
402 GREAT AMERICAN DEBATES
black as well as white; that there shall be one general rule for
the punishment of crime in the different States. But, sir, the
States must have time to act on the subject; and yet we are
here preparing laws and penalties, and proposing to carry them
into execution by military authority, before the States have had
time to legislate, and even before some of their legislatures have
had time to convene. I think the States of this Union are en
titled to some little consideration before you inflict military
government upon them.
I tell you, gentlemen, it is my firm conviction that the bill
can lead to nothing but strife and ill feeling, which will grow
and continue to grow. Where it will end God only knows.
The time will not always be that the citizens will be content
that the State governments should be interfered with, and that
there should be in each State two sets of police officers, one to
punish those who commit what they presume to be offences
against the Africans, and another to punish the African for
his crimes under the State laws, and that punishment should be
made the pretence of prosecuting the white man in your courts.
The thing will not work; it ought not to work; and it never
should have been introduced here. It is not necessary to secure
the freedom of the African. Slavery does not exist. The or
dinary process and proceeding of law is ample for his protec
tion. But when you overturn the State governments, inter
fere by your legislation with their laws, supersede their courts,
keep up a constant contention between the individuals and the
tribunals, you are destroying the unity of this Government and
the purposes for which the States were formed.
The gentleman from Illinois says that this is simply a bill
providing that all persons shall have their rights. I might re
turn the compliment by saying that it is simply a bill declaring
that we have established a military despotism and the laws are
to be enforced at the point of the bayonet.
Senator Hendricks dwelt upon the coercive features
of the bill, which he said were those of the Fugitive Slave
law that the Eepublican defenders of the present bill had
in times past so vehemently opposed and finally repealed.
Now you reenact these provisions, and you claim them as a
merit and as an ornament to the legislation of the country;
and you add an army of officers and clothe them with the power
to call upon anybody and everybody to pursue the running
white man. That is not enough, but you must have the mili-
FIRST CIVIL RIGHTS BILL 403
tary to be called in, at the pleasure of whom? Such a person
as the President may authorize to call out the military forces.
Where it shall be, and to whom this power shall be given, we
do not know.
Henry S. Lane [Ind.] replied:
My distinguished colleague, if I understand him aright,
places his objection to this bill, first, upon the ground that
we have pressed into the service the machinery of the Fugitive
Slave law; and, secondly, that we authorize this bill to be
enforced by the military authority of the United States. It is
true that many of the provisions of this bill, changed in their
purpose and object, are almost identical with the provisions of
the Fugitive Slave law, and they are denounced by my col
league in their present application; but I have not heard any
denunciation from my colleague, or from any of those asso
ciated with him, of the provisions of that Fugitive Slave law
which was enacted in the interest of slavery, and for purposes
of oppression, and which was an unworthy, cowardly, disgrace
ful concession to Southern opinion by Northern politicians. I
have suffered no suitable opportunity to escape me to denounce
the monstrous character of that Fugitive Slave act of 1850. All
these provisions were odious and disgraceful, in my opinion,
when applied in the interest of slavery, when the object was to
strike down the rights of man. But here the purpose is changed.
These provisions are in the interest of free men and of freedom,
and what was odious in the one case becomes highly meritorious
in the other. It is an instance of poetic justice and of apt
retribution that God has caused the wrath of man to praise
Him. I stand by every provision of this bill, drawn, as it is,
from that most iniouitous fountain, the Fugitive Slave law
of 1850.
Then, if the military had been called upon to execute an
infamous law like the Fugitive Slave act, where the sheriff and
the posse comitatus were ineffectual to do so, owing to local
opposition, why should they not be used now, under similar
conditions, to execute a good law?
Senator Cowan said that the supreme objection to
the bill was that in case of a conflict between the State
courts and the military power the latter could decide
and there could be no appeal to the Supreme Court. The
Fugitive Slave law was unconstitutional in this respect,
404 GREAT AMERICAN DEBATES
lie held, and lie could not see how this feature could be
justified merely because it was applied for a good pur
pose rather than a bad. Even the Confederate States
in their Constitution had enacted that State courts should
be supreme in the restoration of fugitive slaves. Cer
tainly in time of peace no military power should inter
vene between State courts and the Supreme Court.
I ask you where is this to end? If this is to be a consoli
dated Government, if all power is to be concentrated at Wash
ington, if all the powers heretofore reserved to the States are to
be given to this Government, let us know it. I am not very
certain that, personally, I should have any very great objection
to it. One great government for this great empire might be
perhaps cheaper, might perhaps induce a greater homogeneous-
ness among the people than the several State governments which
exist now; but that is not the question for determination. We
sit here by virtue of authority derived from the American peo
ple, hedged, limited, circumscribed, and bounded by the terms
of the great organic law, the Constitution, and it is not for us
to transcend that until the will of our principals in that behalf
is known and signified according to the forms in that Constitu
tion laid down for the purpose of making amendments to it.
Then, I say, if we are to preserve this form, if this is to be
a Union of States, and a Union of States which shall have all
the rights reserved that have not been delegated to the general
Government, and if that is the theory on which we are to pro
ceed, if the people of the several States, in their domestic and
civil and political relations, are to be regulated by the States,
then, certainly, upon no known principle of the law can this
bill be justified, and particularly by no known principle of any
constitutional law or of any sound reason can the principle
of substituting military power for a writ of error be sus
tained or maintained.
Senator Trumbull replied that the military were to
be called in merely to aid the courts in executing the law
— an office specifically provided for in the Constitution.
Senator Hendricks said the bill also conferred upon
the military the authority to prevent a violation of the
law before there was such violation, and therefore be
fore a case could come before a court. Is that in aid of
a court?
FIRST CIVIL RIGHTS BILL 405
Senator Trumbull replied that this provision was
based on the general constitutional authority for Con
gress to call out the militia "to execute laws of the
Union. ' ' It did not take the place of a writ of error, for
the courts still exist. He cited acts similar to the pres-
THE HOUR OF MARTYRDOM HAS COME
' * Now I must marry my daughter to a Nigger ! ' *
Cartoon by Thomas Nast
ent one which had been passed under this authority,
notably that passed in 1838, during Van Buren's admin
istration, to enforce the collection of revenue.
The bill was passed by a vote of 33 to 12. Senator
Cowan voted in the negative; Senator Doolittle was
present but did not vote; Senator Johnson was absent;
he would have voted against the bill.
406 GREAT AMERICAN DEBATES
The action of the House on the bill is thus sum
marized by Mr. Blaine in his "Twenty Years of Con
gress":
DEBATE IN THE HOUSE
The bill immediately went to the House, and on the
1st of March that body proceeded to consider it without
its reference to the Judiciary Committee. James F.
Wilson, of Iowa, chairman of that committee, said they
had considered it informally, and in order to save time
it was brought up for action at once. The first amend
ment offered was to strike out " inhabitants " and insert
"citizens of the United States," and thus avoid the em
barrassments that might result from giving it so broad
an extension. The amendment was promptly agreed to.
Mr. Wilson, by another amendment, removed the diffi
culties suggested in the Senate by Reverdy Johnson,
touching the question of marriage between the races.
He supported the bill in a speech of great strength and
legal research. He admitted at the outset that:
"Some of the questions presented by the measure are not
entirely free from defects. Precedents, both judicial and legis
lative, are found in sharp conflict concerning them. The line
which divides these precedents is generally found to be the same
which separates the early from the later days of the Republic.
The farther the Republic drifted from the old moorings of the
equality of human rights, the more numerous became the judi
cial and legislative utterances in conflict with some of the lead
ing features sought to be reestablished by this bill."
The debate was continued by Andrew J. Rogers [N.
J.], in the opposition, by M. Russell Thayer [Pa.], who
made an uncommonly able speech in its favor, and by
Charles A. Eldridge [Wis.], who tersely presented the
objections entertained by the Democratic party to such
legislation. There were some apprehensions in the
minds of members on both sides of the House that the
broad character of the bill might include the right of
suffrage, but to prevent that result Mr. Wilson moved
to add a new section declaring that "nothing in this act
shall be so construed as to affect the laws of any State
FIRST CIVIL RIGHTS BILL
407
concerning the right of suffrage." Mr. Wilson said that
the amendment he proposed did not change his own con
struction of the bill; he did not believe the term "civil
rights ' ' included the right of suffrage ; he offered it sim
ply from excessive caution, because certain gentlemen
feared trouble might arise from the language of the bill.
The amendment was unanimously agreed to. John A.
Bingham [O.], Henry J. Raymond [N. Y.], and other
prominent members of the House, to the number of forty
in all, debated the bill exhaustively. It was passed by
111 yeas to 38 nays.
THE PRESIDENT'S VETO
The bill reached the President on the 18th of March
(1866), and on the 27th he sent to the Senate a message
THE VETO GAL [L] OP
Cover design of a musical composition by ' ' Make Peace '
From the collection of the New York Historical Society
408 GREAT AMERICAN DEBATES
regretting that it contained provisions which he could
not approve. "I am therefore constrained/' he said,
"to return it to the Senate, in which it originated, with
my objections to its becoming a law/' The President
stated that by the first section the Chinese of the Pacific
States, Indians subject to taxation, the people called
gypsies, as well as the entire race designated as black —
people of color, negroes, mulattoes, and persons of Afri
can blood — "are made citizens of the United States.'7
The President did not believe that this class possessed
"the requisite qualifications to entitle them to all the
privileges and immunities of citizens of the United
States. " He sought to raise prejudice against the bill,
says Mr. Blaine, because it proposed "to discriminate
against large numbers of intelligent, worthy, and patri
otic foreigners, in favor of the negro, to whom, after long
years of bondage, the avenues to freedom and intelli
gence have now been suddenly opened. ' '
"It is proposed by a single legislative enactment to confer
the rights of citizens upon all persons of African descent born
within the extended limits of the United States, while persons
of foreign birth who make our land their home must undergo a
probation of five years, and can then only become citizens of
the United States upon the proof that they are of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed toward the good order and
happiness of the same."
The President sought to impress upon Congress, in
strong language, the injustice of advancing four millions
of colored persons to citizenship "while the States in
which most of them reside are debarred from any par-
ticipancy in the legislation." He found many pro
visions of the bill in conflict with the Constitution of the
United States as it had been hitherto construed, and
argued elaborately against its expediency or necessity
in any form.
"The white race and the black race have hitherto lived in
the South in the relation of master and slave — capital owning
labor. Now suddenly the relation is changed, and, as to the
FIRST CIVIL RIGHTS BILL 409
ownership, capital and labor are divorced. In this new rela
tion, one being necessary to the other, there will be a new ad
justment, which both are deeply interested in making har
monious. . . . This bill frustrates this adjustment. It inter
venes between capital and labor and attempts to settle questions
of political economy through the agency of numerous officials,
whose interest it will be to foment discord between the two races,
for as the breach widens their employment will continue and
when the breach is closed their occupation will terminate.
"The details of this bill establish for the security of the
colored race safeguards which go indefinitely beyond any that
the general Government has ever provided for the white race;
in fact, the distinction between white and colored is by the
provisions of this bill made to operate in favor of the colored
and against the white race. The provisions of the bill are an
absorption and assumption of power by the general Government,
which, being acquiesced in, must eventually destroy our feder
ative system of limited power and break down the barriers
which preserve the rights of States. It is another step, or
rather stride, toward centralization and the concentration of all
legislative power in the general Government. The tendency of
the bill must be to resuscitate rebellion and to arrest the progress
of those influences which are more closely thrown around the
States — the bond of union and peace. ' '
The debate upon the President's veto, says Mr.
Blaine, was not very prolonged but was marked by ex
citement approaching to anger. Senator Trumbull, who
had charge of the bill, analyzed the President's argu
ment with consummate ability and readily answered him
on every point of constitutional law which he had ad
duced. He did more than this. He pointed out with
unflinching severity what he considered the demagogical
features of the message.
"The best answer to the President's objection that the bill
proposes to make citizens of Chinese and gypsies and his refer
ence to the discrimination against foreigners is to be found
in a speech delivered in this body by the President himself, on
the occasion of a message being sent to the Senate by Mr.
Buchanan, then President of the United States, returning with
his objections what was known as the Homestead bill. On
that occasion Senator Johnson, of Tennessee, said, 'This idea
410 GREAT AMERICAN DEBATES
about poor foreigners somehow or other bewilders and haunts
the imagination of a great many. I am constrained to say that
I look upon this objection to the bill as a mere quibble on the
part of the President, as being hard pressed for some excuse in
withholding his approval of the measure. His allusion to for
eigners in this connection looks to me more like the ad cap-
tandum * of the mere politician or demagogue than a grave and
sound reason to be offered by the President of the United States
in a veto message on so important a measure as the Homestead
bill.7"2
Senator Trumbull argued with great force that the
citizen has a counter-claim upon the Government for the
comprehensive claim which the Government has upon
the citizen.
"It cannot be that we have constituted a government which
is all-powerful to command the obedience of the citizen but has
no power to afford him protection. Tell it not, sir, to the father
whose son was starved at Andersonville, or the widow whose
husband was slain at Mission Ridge, or the little boy who leads
his sightless father through the streets of your city, or the
thousand other mangled heroes to be seen on every side of us
to-day, that this Government, in defence of which the son and
the husband fell, the father lost his sight, and the others were
maimed and crippled, had the right to call these persons to its
defence but now has no power to protect the survivors or their
friends in any rights whatever in the States. Such, sir, is not
the meaning of our Constitution : such is not the meaning of
American citizenship. Allegiance and protection are reciprocal
rights."
On April 6 the vote was taken upon passing the bill
over the President's veto; the ayes were 33 and the
nays 15. Every Senator was present except Mr. Dixon
of Connecticut, still detained from the Senate by illness.
Among the nays were Senators Cowan and Doolittle.
The bill went to the House and after a very brief
debate came to a vote on the 9th of April — yeas 122,
nays 41. Speaker Schuyler Coif ax [Ind.] directed that
his name should be called in order that he might have
the honor of recording himself for the bill. He then an-
1 ' ' Buncombe. ' ' z See Volume X, chapter i.
FIRST CIVIL RIGHTS BILL 411
nounced that, having received the vote of two-thirds
of each House, the Civil Eights bill had become a law,
the President's objections to the contrary notwithstand
ing. The announcement was received with an outburst
of applause in which the members of the House as well
as the throng of spectators heartily joined.
CHAPTER XII
THE FOURTEENTH AMENDMENT
[EQUALITY OP CIVIL RIGHTS]
James G. Elaine [Me.] and Eoscoe Conkling [N. Y.] Propose Constitu
tional Amendments Excluding from the Basis of Kepresentation in the
House Persons to Whom Civil Eights Are Denied by States — Thaddeus
Stevens [Pa.] Introduces Amendment to Constitution to Establish
Equality of Individual Eights Throughout the States, Fix Their Eepre-
sentation in Congress, Defer Extension of National Suffrage to ex-
Eebels, and Eepudiate Eebel Debts and Compensation of All Owners of
Liberated Slaves — Supplementary Bills Providing for Eatification of
the Amendment by the States and for Exclusion of Classes of ex-Eebels
from Federal Office — Debate in the House on the Amendment: Varying
Views by Mr. Stevens, James G. Elaine [Me.], William E. Finck [O.],
James A. Garfield [O.], Benjamin M. Boyer [Pa.], William D. Kelley
[Pa.], Andrew J. Eogers [N. J.], Gen. Eobert C. Schenck [O.], Green
Clay Smith [Ky.], John M. Broomall [Pa.], George S. Shanklin [Ky.],
Henry J. Eaymond [N. Y.], George S. Boutwell [Mass.], Samuel J.
Eandall [Pa.], Myer Strouse [Pa.], Nathaniel P. Banks [Mass.], Henry
L. Dawes [Mass.], John A. Bingham [O.], M. Eussell Thayer [Pa.];
Bill Is Passed — Debate in the Senate: Varying Views by Thomas A.
Hendricks [Ind.], Jacob M. Howard [Mich.]; Bill Is Passed, and Be
comes Law — Eemarks of President Johnson on the Eeadmission of
Tennessee into the Union.
O
N January 8, 1866, James G. Elaine [Me.] pro
posed in the House of Representatives an
amendment to the Constitution declaring that:
"Representatives and direct taxes shall be apportioned
among the several States which shall be included within this
Union according to their respective numbers, which shall be
determined by taking the whole number of persons, except
those whose political rights or privileges are denied or abridged
l>y the constitution of any State on account of race or color."
On the 15th of January Eoscoe Conkling [N. Y.]
412
THE FOURTEENTH AMENDMENT 413
submitted a constitutional amendment on the subject, in
two forms, making the proviso in one case that, " when
ever in any one State the political rights or privileges
of any man shall be denied or abridged on account of
race or color, all persons of such race or color shall be
excluded from the basis of representation, " and in the
other case that "when the elective franchise in any
State shall be denied or abridged on account of race or
color, all persons of such race or color so denied shall
be excluded from the basis of representation/'
On the 22nd of January the Reconstruction Commit
tee, both in the Senate and House, reported their pro
posed amendment to the Constitution on this subject.
It was in these words:
" 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. ' '
The amendment was substantially the second form
of that proposed by Mr. Conkling.
Mr. Elaine has reported the debate upon this meas
ure in his "Twenty Years of Congress " [Vol. II, pages
194-204], and for it the reader is referred to his ad
mirable digest.
The resolution was carried in the House — yeas 120,
nays 46; but defeated (since it required a two-thirds
vote) in the Senate — yeas 25, nays 22.
The report of the Eeconstruction Committee was
made in the House of Representatives by Thaddeus Ste
vens [Pa.] on April 30, 1866. It consisted of a joint
resolution proposing an Amendment (the Fourteenth)
to the Constitution with the following provisions :
1. No State shall "abridge privileges or immunities" of citi
zens of the United States; nor "deprive any person of life, lib-
414 GREAT AMERICAN DEBATES
erty, or property without due process of law"; nor deny him
equal legal protection.
2. Representation in Congress shall be appointed according
to population, excluding Indians not taxed ; and, in States where
suffrage is denied, male citizens over twenty-one years of age
not debarred therefrom for " participation in rebellion or other
crime," excluding these persons.
3. Former rebels shall also be excluded until July 4, 1870,
from voting for Representatives in Congress and presidential
electors.
4. Rebel debts and claims for compensation for emancipa
tion of slaves shall not be recognized by the United States nor
any State.
5. Congress shall have power to enforce this article by ap
propriate legislation.
Supplementary bills were also reported from the
committee, admitting the lately revolted States to the
Union upon ratification of the amendment, and declar
ing certain classes of ex-rebels ineligible to office in the
Federal Government, these classes being in the main
those excluded from acceptance of the amnesty offered
by President Johnson.
Discussion of the proposed amendment began on
May 8, 1866. Speeches were limited to one-half hour
each, causing the debate to be condensed and direct.
BECONSTKUCTION BY CONSTITUTIONAL AMENDMENT
HOUSE OF REPRESENTATIVES, MAY 8-10, 1866
Mr. Stevens opened the debate. He said that the
proposition was not all that the committee wished, but
all that public opinion would at present sustain.
Upon a careful survey of the whole ground, we did not
believe that nineteen of the loyal States could be induced to
ratify any proposition more stringent than this. I say nineteen,
for I utterly repudiate and scorn the idea that any State not
acting in the Union is to be counted on the question of ratifica
tion.
THE FOURTEENTH AMENDMENT 415
Mr. Stevens denounced the Senate for defeating the
former amendment proposed by the Committee on Rep
resentation of States in Congress. It would, he said,
have "secured the enfranchisement of every citizen at
no distant period." He also denounced the Senate for
defeating the amendment repudiating the rebel debt. It
would, he said, "have gone far to curb the rebellious
spirit of secession and to have given the oppressed race
their rights."
After having received the careful examination and approba
tion of the committee, and having received the united Republi
can vote of one hundred and twenty Representatives of the
people, it was denounced as ''utterly reprehensible," and "un
pardonable"; "to be encountered as a public enemy"; "posi
tively endangering the peace of the country, and covering its
name with dishonor." "A wickedness on a larger scale than
the crime against Kansas or the Fugitive Slave law ; gross, foul,
outrageous; an incredible injustice against the whole African
race"; with every other vulgar epithet which polished cultiva
tion could command. It was slaughtered by a puerile and pe
dantic criticism, by a perversion of philological definition which,
if when I taught school a lad who had studied Lindley Murray
had assumed, I would have expelled him from the institution
as unfit to waste education upon. But it is dead, and unless
this (less efficient, I admit) shall pass, its death has postponed
the protection of the colored race perhaps for ages. But men in
pursuit of justice must never despair. Let us again try and
see whether we cannot devise some way to overcome the united
forces of self-righteous Republicans and unrighteous copper
heads. It will not do for those who for thirty years have fought
the beasts at Ephesus to be frightened by the fangs of modern
catamounts.
Let us now refer to the provisions of the proposed amend
ment.
Here Mr. Stevens read the first section.
I can hardly believe that any person can be found who will
not admit that every one of these provisions is just. They are
all asserted, in some form or other, in our Declaration or or
ganic law. But the Constitution limits only the action of
Congress, and is not a limitation on the States. This amend
ment supplies that defect, and allows Congress to correct the
416 GREAT AMERICAN DEBATES
unjust legislation of the States, so far that the law which oper
ates upon one man shall operate equally upon all. Whatever
law punishes a white man for a crime shall punish the black
man precisely in the same way and to the same degree. What
ever law protects the white man shall afford "equal" protection
to the black man. These are great advantages over their present
codes. Now different degrees of punishment are inflicted, not
on account of the magnitude of the crime, but according to the
color of the skin. Now color disqualifies a man from testifying
in courts, or being tried in the same way as white men. Unless
the Constitution should restrain them those Stafes will all, I
fear, keep up this discrimination, and crush to death the hated
freedmen. Some answer: "Your Civil Rights bill secures the
same things. ' ' That is partly true, but a law is repealable by a
majority. And I need hardly say that the first time that the
South with their copperhead allies obtain the command of Con
gress it will be repealed. The veto of the President and their
votes on the bill are conclusive evidence of that. This amend
ment once adopted cannot be annulled without two-thirds of
Congress. That the enemies of the amendment will hardly get.
And yet certain of our distinguished friends propose to admit
State after State before this becomes a part of the Constitution.
What madness ! Is their judgment misled by their kindness ; or
are they unconsciously drifting into the haven of power at the
other end of the avenue? I do not suspect it, but others will.
The second section I consider the most important in the
article. The effect of this provision will be either to compel
the States to grant universal suffrage or so to shear them of
their power as to keep them forever in a hopeless minority in
the national Government, both legislative and executive. If they
do not enfranchise the freechnen, it would give to the rebel
States but thirty-seven Representatives. Thus shorn of their
power, they would soon become restive. Southern pride would
not long brook a hopeless minority. True, it will take two,
three, possibly five years before they conquer their prejudices
sufficiently to allow their late slaves to become their equals at
the polls. That short delay would not be injurious. In the
meantime the freedmen would become more enlightened, and
more fit to discharge the high duties of their new condition.
In that time, too, the loyal Congress could mature their laws
and so amend the Constitution as to secure the rights of every
human being, and render disunion impossible. Heaven forbid
that the Southern States, or any of them, should be represented
on this floor until such muniments of freedom are built high
THE FOURTEENTH AMENDMENT 417
and firm. Against our will they have been absent for four
bloody years; against our will they must not come back until
we are ready to receive them. Do not tell me that there are
loyal Representatives waiting for admission — until their States
are loyal they can have no standing here. They would merely
misrepresent their constituents.
I admit that this article is not as good as the one we sent
to death in the Senate. In my judgment we shall not approach
the measure of justice until we have given every adult freedman
a homestead on the land where he was born and toiled and
suffered. Forty acres of land and a hut would be more valuable
to him than the immediate right to vote. Unless we give them
this we shall receive the censure of mankind and the curse of
Heaven. That article referred to provided that if one of the
injured race was excluded the State should forfeit the right
to have any of them represented. That would have hastened
their full enfranchisement. This section allows the States to
discriminate among the same class, and receive proportionate
credit in representation. This I dislike. But it is a short step
forward. The large stride which we in vain proposed is dead ;
the murderers must answer to the suffering race. I would not
have been the perpetrator. A load of misery must sit heavy
on their souls.
The third section may encounter more difference of opinion
here. Among the people I believe it will be the most popular of
all the provisions; it prohibits rebels from voting for members
of Congress and electors of President until 1870. My only
objection to it is that it is too lenient. I know that there is a
morbid sensibility, sometimes called mercy, which affects a few
of all classes, from the priest to the clown, which has more
sympathy for the murderer on the gallows than for his victim.
I hope I have a heart as capable of feeling for human woe as
others. I have long since wished that capital punishment were
abolished. But I never dreamed that all punishment could be
dispensed with in human society. Anarchy, treason, and vio
lence would reign triumphant. Here is the mildest of all pun
ishments ever inflicted on traitors. I might not consent to the
extreme severity denounced upon them by a provisional gover
nor of Tennessee — I mean the late lamented Andrew Johnson of
blessed memory — but I would have increased the severity of this
section. I would be glad to see it extended to 1876, and to in
clude all State and municipal as well as national elections. In
my judgment we do not sufficiently protect the loyal men of the
Rebel States from the vindictive persecutions of their victorious
VII— 27
418 GREAT AMERICAN DEBATES
Rebel neighbors. Still I will move no amendment, nor vote for
any, lest the whole fabric should tumble to pieces.
I need say nothing of the fourth section, for none dare
object to it who is not himself a rebel. To the friend of justice,
the friend of the Union, of the perpetuity of liberty, and the
final triumph of the rights of man and their extension to every
human being, let me say, sacrifice as we have done your peculiar
views, and, instead of vainly insisting upon the instantaneous
operation of all that is right, accept what is possible, and "all
these things shall be added unto you. ' '
James Gr. Elaine [Me.] called Mr. Stevens ' attention
to the amnesty acts of 1862 and 1865, and asked :
Do we not, by the proposed action in the third section of
the bill, place ourselves in the attitude of taking back by Con
stitutional amendment that which has been given by Act of
Congress, and by Presidential proclamation issued in pursuance
of the law? and will not this be justly subjected to the charge of
bad faith on the part of the Federal Government ? "
Mr. Stevens replied that a pardon, whether by the
President having the power or specially by act of Par
liament or Congress, extinguishes the crime.
" After that there is no such crime in the individual. A
man steals and he is pardoned. He is not then a thief and you
cannot call him a thief, or if you do you are liable to an action
for slander. None of those who have been fully pardoned are
affected by this provision."
Mr. Elaine replied that the constitutional amendment
would be held to override the President's proclamation,
being organic in its nature and therefore supreme.
' ' That is my understanding, and that, it seems to me, would
be the legal construction; but, if the gentleman from Pennsyl
vania is correct, then I maintain that it is the bounden duty
of this House to make the language so plain that he who runs
may read — that there may be no doubt about its construction."
William E. Finck [Dem.], of Ohio, attacked the
THE FOURTEENTH AMENDMENT 419
amendment. Its very proposition was confession of the
unconstitutionally of previous measures, such as the
Civil Rights bill, enacted by Congress.
The third section in particular he considered an ab
surdity. Fix a future date when a disaffected citizen
should become a loyal one, and in the meantime develop
his loyalty by imposing disabilities on him? Prepos
terous! The very proposition of the amendment was
confession of the unconstitutionality of disfranchising
citizens, which had hitherto been attempted without an
amendment. The purpose was evidently partisan — to
prevent the States lately in revolt from having a voice
in choosing the next President. He said in closing :
Sir, a strange spectacle is presented in this measure. States
are called upon to deliberate on proposed amendments within
their own respective jurisdictions; and these very States are
deprived of all opportunity of discussing or voting upon these
propositions in Congress, and are States which it is gravely
proposed shall not be represented, unless they shall first adopt
amendments presented to them by two-thirds of the representa
tives of twenty-five out of the thirty-six States of this Union.
And more than all, these States are thus invited to deliberate
on the modest demand made of them to disfranchise a large
majority of their own citizens, through legislatures elected or
to be elected, by the votes of the very men who are to be dis
franchised under this amendment. Sir, the proposition need
only be stated to condemn it as anti-republican and wholly at
war with all the well-settled principles of a free representative
Government.
It is, sir, the assertion of a principle which may embarass the
nation in the future. A generation who may come after us may
deem it best for the true interest of a country which may then
number one hundred million people, and fifty States, to modify
the rights of some other States in their representation.
Sir, this measure is dangerous to our safety. It protracts
an unfortunate contest without promising any beneficial results
to the harmony and prosperity of the country. The time has
come, I most respectfully submit, when the feelings of sectional
hate and animosity should give way to the higher and nobler
principles of magnanimity, of kindness, conciliation, and true
charity.
Let us rise equal to the great occasion and imitate the noble
420 GREAT AMERICAN DEBATES
example of our brave armies in the field, who, when the conflict
had ended, no longer regarded the Southern people as enemies,
but as friends. Let us welcome into these halls Representatives
from all the States who may be true to the Constitution and
the Union; and, when all these States shall once more gather
around this common council chamber of the nation, then, and
not till then, let the great questions of amendment be fairly
discussed and voted upon.
Gen. James A. Garfield [0.] followed:
Sir, I believe that the right to vote, if it be not indeed one
of the natural rights of all men, is so necessary to the protection
of their natural rights as to be indispensable, and therefore
equal to natural rights. I believe that the golden sentence of
John Stuart Mill, in one of his greatest works, ought to be
written on the constitution of every State, and on the Constitu
tion of the United States, as the greatest and most precious
of truth : ' ' That the ballot is put into the hands of a man, not
so much to enable him to govern others as that he may not be
misgoverned by others. ' ' I believe that suffrage is the shield, the
sword, the spear, and all the panoply that best befits a man for
his own defence in the great social organism to which he be
longs. And I profoundly regret that we have not been enabled
to write it and engrave it upon our institutions, and imbed it in
the imperishable bulwarks of the Constitution as a part of the
fundamental law of the land.
But I am willing, when I cannot get all I wish, to take what
I can get. And, therefore, I am willing i-y accept the proposi
tions that the committee have laid before us, though I desire
one amendment which I will mention presently.
I am glad to see this first section here which proposes to hold
over every American citizen, without regard to color, the pro
tecting shield of law. The gentleman who has just taken his
seat [Mr. Finck] undertakes to show that because we propose
to vote for this section we therefore acknowledge that the Civil
Rights bill was unconstitutional. He was anticipated in that
objection by the gentleman from Pennsylvania [Mr. Stevens].
The Civil Rights bill is now a part of the law of the land.
But every gentleman knows it will cease to be a part of the law
whenever the sad moment arrives when that gentleman's party
i comes into power. It is precisely for that reason that we pro
pose to lift that great and good law above the reach of political
strife, beyond the reach of the plots and machinations of any
THE FOURTEENTH AMENDMENT 421
party, and fix it in the serene sky, in the eternal firmament
of the Constitution, where no storm of passion can shake it and
no cloud can obscure it.
I wish to call the special attention of the House to the third
section. The gentleman from Maine [Mr. Blaine] has made a
point against it, which has at least this value: that, whatever
may be the intention of the committee or of the House, the sec
tion is least susceptible of double construction. Some may say
that it revokes and nullifies in part the pardons that have
already been granted in accordance with law and the proclama
tions of the President. Others may say that it does not affect
them, and will not apply to rebels who have been thus pardoned.
MR. STEVENS. — I admit that a pardon removes all liability
to punishment for a crime committed. But there is a vast
difference between punishing for a crime and withholding a
privilege. Nobody will doubt that you may distinguish between
classes in the privileges accorded to them if you think their
enjoyment would be dangerous to the community-. "While I
admit that the pardon will be full and operative so far as the
crime is concerned, it confers no other advantages than an
exemption from punishment for the crime itself.
GENERAL GARFIELD. — I was about to say that, if the section
does not apply to those who have been pardoned, then it will
apply to so small a number of people as to make it of no practi
cal value ; for the excepted classes in the general system of par
dons form a very small fraction of the rebels. If the section
does apply to those who have received the pardon, the objection
of the gentleman from Maine [Mr. Blaine] may be worthy of
consideration.
Mr. Speaker, the third section is, in my judgment, the only
proposition in this resolution that is not bottomed clearly and
plainly upon principle — principle that will stand the test of cen
turies, and be as true a thousand years hence as it is to-day. If
the persons referred to are not worthy to be allowed to vote
in January of 1870, will they be worthy in July of that year?
If the franchise were withheld until they should perform some
specific act of loyalty, if it were conditioned upon any act
of theirs, it would commend itself as a principle, but the fixing
of an ordinary date, without any regard to the character or
conduct of the parties themselves, is indefensible, and will not
commend itself to the judgment of reflecting men. What is
worse, it will be said everywhere that this is purely a piece of
political management in reference to a presidential election.
Suppose this section should become a part of the Constitu-
422 GREAT AMERICAN DEBATES
tion, and suppose that it were entirely defensible as a matter
of principle, I ask gentlemen how it is to be carried out in prac
tice. If, under its operation in eleven States of the Union, nine-
tenths, and, in some instances, ninety-nine hundredths of the
adult population are to be disfranchised for four years, how
do you propose to carry its provisions into practical execution?
Will nine-tenths of the population consent to stay at home and
let one-tenth do the voting? Will not every ballot-box be the
scene of strife and bloodshed ? It may well be doubted whether
this section can be carried out except by having a military force
at every ballot-box in eleven States of the Union. Are you ready
to make the South a vast camp for four years more. I move
that the resolution be recommitted to the committee, with in
structions to report it back to the House with the third section
stricken out.
The motion was not carried.
Benjamin M. Boyer [Dem.], from Pennsylvania, de
clared that the effect of the amendment would be to dis
franchise for four years nine-tenths of the voting popu
lation of eleven States.
You cannot disfranchise a majority of the voters of a State
without the establishment of an oligarchy ; and the Constitution
as our fathers made it guarantees a republican form of govern
ment to every State.
Besides, it is not for them alone that the Union is to be
restored, but for ourselves also, and our children. Every hour
during which we govern the eleven States with their twelve
million people as conquered provinces carries us further away
from the original landmarks of the Constitution and brings us
nearer to centralization and military despotism.
William D. Kelley [Pa.] asked his colleague if "mag
nanimity required us to hand the Government over im
mediately to the vanquished but unconverted rebels? "
Mr. Boyer said that the people of the South were
rebels no longer, but were prepared to send loyal men
to Congress and therefore their right to be there repre
sented could not be constitutionally denied.
In reply Mr. Kelley read a letter from an ex-Confed
erate soldier of North Carolina, who admitted the right
THE FOURTEENTH AMENDMENT 423
of the Government to treat the States formerly in re
bellion as conquered territory. The letter said:
"I have always held that it was absurd in us, after being
reduced to submission by the Federal Government, to set up any
claim of right to regulate the terms of settlement.
"To me it is simply ridiculous to assert that the States
had both the right to secede, and, upon a failure to establish it,
the right to return at pleasure. No conclusion is more logical
to my mind than this, namely, that, if the right to secession
existed and was exercised, the States are now conquered terri
tory; or that, if it did not exist, the people, after attempting
and failing in a revolution, forfeited their most valuable political
rights. And, in either case, the consequences are practically not
very different. Whatever I may think of the wisdom of your
plan of reconstruction, the right of the Government to make one,
nobody but an insane man can deny. Like the vanquished
everywhere, I think the people of the South will reap true glory
now in fortitude alone. "
«
Upon being asked by Andrew J. Rogers [N. J.]
for the name of the correspondent Mr. Kelley replied :
Sir, so bloody-minded are some of the baser sort of the re
constructed that I am not disposed to offer a victim or two
upon the altar of the curiosity of the distinguished leader of
the Democracy from New Jersey. [Laughter.]
Mr. Kelley read further:
"I cannot but think that the President has committed a
great blunder, if not a great crime [by attempting reconstruc
tion by unconstitutional means, and so breaking with his party] .
I know verily that for two or three months after the surrender
— until, indeed, his restoration policy was fully developed and
considered here a fixed fact nolens volens — the Southern mind
was more like a blank sheet of paper than I have ever known it,
more free from prejudice, more disposed to broad national views,
and more susceptible to impressions favorable to the North and
Northern men and Northern ideas. Upon that blank sheet of
paper might have been written enduring characters of peace,
union, and harmony between every section of the Republic. But
the time was lost ; when it will return, God only knows. I give
it as my deliberate conviction that the prospect is darkening
424 GREAT AMERICAN DEBATES
every day. Sectional pride, sectional hate, sectional ideas are as
rampant here as they were before the war. Is it so at the North ?
I cannot believe it is so. But I am told that the determination
is fixed to let no part of the fruits of the war pass away till all
be fulfilled. This is right. Nor do I believe that our people
will come to their senses until they realize this fact beyond cavil
or dispute. The notion is sedulously inculcated here that the
Northwest is thoroughly with the President and against Con
gress."
Upon this Mr. Kelley remarked:
The absurd notions inculcated here in Congress by gentlemen
who claim to be the peculiar friends of the South are misleading
the poor, impulsive, passion-ruled people of that section, and
prompting them to resist all efforts at conciliation and social
reconstruction, impelling them to drive Northern men and
capital from their respective neighborhoods, and, by threats
and deeds of violence, to retard the material development of
their own section and the interlinking of ours with theirs by the
ties of friendship, of commerce. Yes, it is by promulgating such
groundless delusions and catering to their wounded pride that
the hour of safe and perfect reconstruction is delayed. No con
sideration is more important than the animus of the masses of
the Southern people; and he is not their friend who blinds
their judgment or fires their hatred against the overwhelming
majority of the people of the North.
Gen. Eobert C. Sehenck [0.] defended the bill. He
said that the contest before the country was between
the President's theory of reconstruction and that of the
dominant party in Congress and the country.
As I understand the idea of the President of the United
States — although his "policy" and his practice, I must say, on
this very subject have been by no means consistent — it is that
the States which have been in rebellion are now as much as any
States of this Union in full, complete, and equal relation to all
the other States ; that their rights are in all respects the same ;
that among these rights is included the privilege of unquestioned
representation here in the councils of the nation, and that to
shut them out from the enjoyment of this is to do them, there-
fare, absolute wrong.
Now, sir, I will not stop to inquire when that right attached.
I will not stop to inquire whether the argument which would
prove that proposition would not equally well prove that all
THE FOURTEENTH AMENDMENT 425
through the rebellion, inasmuch as secession was a void act, these
States and their people were fully and completely possessed of
all rights in the Union, and, therefore, entitled to representa
tion as now. I do not see where the argument is to stop. If
the proposition be true, then at any time during the progress of
the rebellion Virginia might have elected Robert E. Lee a
Senator to represent that State and her sovereignty at the other
end of the Capitol, or any of those men who were serving under
him as chiefs of division and brigade to represent districts here
upon this floor; and to have excluded them would have been to
take away the right of Virginia and of the people of Virginia
to be represented in either branch of Congress. And Robert E.
Lee and other such arch-traitors could have appeared here on
the floor of Congress and spent their winter in obstructing legis
lation intended for the purpose of aiding the Executive and
war-making power in putting down the rebellion, and, whenever
the spring opened and they were ready for another campaign,
might have taken the field, in order, by force of arms, to attempt
the destruction of the Government for which they legislated!
Monstrous absurdity!
I will not stop, however, to ask when the time came, at what
date the States were entirely and thoroughly and completely
restored to that equal relation, because I do not believe they
have any such equal, complete, normal relation as they once
enjoyed while they were States in full communion with the rest
of the Union. If I believed it, if I admitted that theory as to
the present condition of the States, then it would follow with
me necessarily that I should regard these people as having the
right to vote for electors of President and Vice-President and
for members of Congress, and, if they possessed this right, then
to take away from them, either by statute law or organic law,
the due exercise of it would be imposing on them a penalty and
punishment in addition to anything else they may have before
been deprived of.
Rejecting this presidential theory, as it may be termed, I
come, then, to the congressional theory on this subject. I will
not stop to go into the inquiry whether these States have ever
been out of the Union or not.
I do not believe they ever have. I do not subscribe to
the doctrine of their having been reduced to the condition of
Territories in the sense in which many understand it. I believe
we had the right to subdue them, and subject them to obedience
precisely upon the same principle on which a father punishes
his own child when he has misbehaved. He thrashes his wicked
426 GREAT AMERICAN DEBATES
and graceless son because he is his son, and not the child of a
stranger. I believe we have a like right to inflict punishment
on these rebellious States. In the domestic circle we keep the
erring child in disgrace away from the table, surrounded by
the rest of the inmates of the family, until he has completely,
and to our satisfaction, shown by penitence and a manifestation
of a proper disposition that he means to deport himself better
in the future ; and no such sinning child has a right to complain
of this discipline.
But to the congressional theory. I understand it to be this:
that these rebellious States have, of themselves, as far as they
have the power to do so, broken away from their normal and
proper relations to the rest of the States; that, when they thus
broke away, though they did not release themselves from their
obligations, they forfeited certain rights, and, among others,
after refusing to be represented here, disclaiming their alle
giance and denying their connection through representation
with the rest of the States, they forfeited that right of repre
sentation and cannot regain it until it is properly and by law
restored.
And I understand, further, the theory to be that they can
be properly restored only by law, and that, until a law is
enacted by which any State that has thus flung itself out of its
proper relations to the Union is permitted to come back and
stand upon a footing with other States and enjoy its represen
tation here, such right of representation cannot be regained by
that State.
Now if this be the true theory, as I think it is, then I have
no difficulty on account of the objection made by the gentleman
from Maine [Mr. Blaine], because, if those States flung away
their right of representation, if they have forfeited by their
misbehavior their right to claim their old, normal, formerly
existing relation to the rest of the State, it is to be a work of
subsequent enactment when and upon what conditions such
rights and relations shall be restored to them.
Fully believing this, I aver that there is nothing that should
be regarded as penalty or punishment in this third section of
the proposed amendment. It takes nothing away from the
people of those States. It does not disfranchise, but refuses to
enfranchise. If you say that the people of these States, because
of their having been engaged in the rebellion, shall not vote for
Federal officers, there is nothing taken from them, because they
have already divested themselves of that privilege, voluntarily
abandoned, given it up, flung it away by breaking loose from
THE FOURTEENTH AMENDMENT 427
the rest of the Union, as far as by their act, disposition, and
power they could do so.
If they can only be restored as States, as reorganized com
munities, as a people, by our action, to the enjoyment of those
rights, then the very fact that we have the power by statute-law
or amendment to the Constitution thus to restore them, involves
the further proposition that their restoration must be upon such
conditions and such terms as we shall prescribe.
My honored colleague [Mr. Garfield] proposes to get rid of
this entire section, and to instruct the committee, in case the
amendment be recommitted, to erase it altogether.
He says that he would be willing to have a proposition of
this nature embodied in the constitutional amendment if, in
stead of disfranchising these insurgents until 1870, it disfran
chises them perpetually.
Now, I deny the principle on which he sets out that there
is anything inconsistent or wrong in making it an exclusion for
a term of years instead of exclusion altogether. If there be
anything in that argument, you ought not to send a man to an
insane asylum for one, two, or three years, at the end of which
period you may reasonably expect his intellect to be restored;
you ought either to let him roam at large altogether or send him
off as a lunatic for life. Or, in the case of crime, you must"
either not sentence a man to the penitentiary at all, or else in
carcerate him for the term of his natural life. Or, to compare
it to another thing, which perhaps better illustrates the prin
ciple involved, when a foreigner arrives upon our shores we
should not say to him: "At the end of five years, when you
have familiarized yourself with our institutions, and become
attached to them, we will allow you to become a citizen, and
admit you to all the franchises we enjoy," but we should require
that he be naturalized the moment he touches our soil, or else ex
cluded from the rights of citizenship forever.
Sir, I do not see that there is any principle involved in it.
It is a mere question of expediency.
It has also been objected that it is exceptionable to incor
porate into the Constitution any condition depending on lapse
of time or a term of years — a period within or beyond which
something is to be allowed or denied; and this is said to be,
therefore, altogether a novel and unprecedented proposition.
Sir, I deny even that. Any gentleman familiar with the Con
stitution will recall the provision that the slave trade, existing
at the time of its adoption, should be permitted to run on for
twenty years, but might be forbidden at the end of that time.
428 GREAT AMERICAN DEBATES
Green Clay Smith [Ky.] replied to General Schenck :
The gentleman from Ohio says that he would not admit
that these States were out of the Union; that they had been
in the Union and were parts of the body-politic. Well, if that is
the fact, how and under what circumstances are they to be gotten
out ? How are they to be destroyed ? The gentleman, in speak
ing of this subject, adopted a simile, and said that when a child
has offended the father whips him, and thus by correction
brings him back to obedience to the law. Now, I submit the
question whether there was ever on the face of the earth a
father who, though he chastised his child because of disobedi
ence, refused that child, even after the chastisement, bread and
clothing, and a place in his house. The father whips the child
from love, remembering all the time that he is ' * bone of his bone,
flesh of his flesh. ' ' He chastises him because he loves him.
Now, sir, these States are in the Union. There is, so far as I
know, only one man in this House who says that they are not;
and he is the member from the Lancaster district of Pennsyl
vania [Mr. Stevens].
You will have to live with those people; they are a part of
the Government ; their States are States of the Union ; they are
under the Constitution; they are subject to your laws, and they
obey every precept that you lay down for them. And, sir, one
remarkable thing is this : that, if a rebel obeys the law, you want
to hang him because he does obey it ! you believe the law must
be wrong because he assents to it! But, if he violates the law,
you want, also, to hang him ! What is the poor man to do ?
Eelating the story of the judgment of Solomon Mr.
Smith compared the Union to the child that was claimed
by the mother and the harlot.
The Government of the United States is our mother ; harlots
North and South have attempted to destroy the child of the
Government, the Constitution and the Union. It was proclaimed
in the South: "Let the Union slide"; it was echoed back from
the North: "Let the Union slide." They said: divide the
Union ; they attempted it. A long war was prosecuted for this
division, but it failed. The wisdom, energy, and patriotism of
the people said : ' ' No, we will make sacrifices of blood and treas
ure and the great institution of slavery; but defend, save, and
let live the Union of the States." These harlots cry to-day:
the Union is dissolved, it is dissevered and gone; the sacrifice
THE FOURTEENTH AMENDMENT 429
made, the destruction of slavery, is not enough ; let the child be
divided. Their followers, but few in number it is to be hoped,
however, say : ' * Let the Union slide ' ' ; but the party to which I
belong, the great part of the Union, say: ''No; we love the
Union; it gives us life, protection, homes, plenty, liberty, indi
vidual freedom, and ' by the Eternal it shall be preserved. ' !
John M. Broomall [Pa.] spoke on May 9. He cal
culated that not more than one man in twelve in the
States formerly in rebellion would be disfranchised by
the amendment, and therefore thought it extremely
lenient.
Mr. Speaker, this measure has been spoken of as the punish
ment to be imposed upon the South. Why, is this all that is
proposed to be inflicted upon men who have been guilty of
crimes so monstrous? Is there to be no further punishment
than this? Is treason not to be rendered odious? In fact, this
is not a punishment at all. These people have now no rights.
They are the conquered, we the conquerors; and the conquered,
as everybody knows, must look to the conquerors for their future
political and civil position. We propose to grant rights, we
propose to give favors, but we propose to leave out one in every
twelve for four years in thus giving the favors. It is not as
punishment, it is as a means of future security, that this provi
sion is asked to be incorporated in the Constitution. Why, never
before were such favorable terms as these offered to any van
quished people by the victors!
These people have murdered two hundred and ninety thou
sand of our fellow-citizens. The man Probst, who, in Philadel
phia, has been tried and sentenced to be hanged for murder,
killed eight persons. He is to be hanged, and Alexander H.
Stephens, who was one of the main supporters of the rebellion,
is to be allowed a seat in the Senate of the United States. What
a mockery of human justice!
Alexander H. Stephens sinned against light and knowledge.
He was the great champion of the Union in the South. When
he was bribed by the love of office into crime, what wonder
that the great masses of the South followed him?
Both these men "accept the situation"; both acknowledge
that they have been defeated in a war upon society ; but Stephens
appears before a committee of Congress and actually claims
right, like the Pharisee in the temple; while poor Probst can
only say: "Lord have mercy upon me a sinner."
430 GREAT AMERICAN DEBATES
To bolster up the pet theory of restoration founded on rebel
rights, it is now denied that we have ever been at war. War
supposes conquest as one obvious mode of termination, and con
quest extinguishes political rights. This would not suit the
purposes of those who think the South was right in her demands,
but only blundered in the means employed to obtain them.
Hence, there has been no war, whatever the soldiers and the be
reaved ones may think to the contrary.
The President of the United States, in his recent peace proc
lamation, has given us from a Democratic standpoint the military
history of the country for the last five years. He says that in
1861 certain persons in certain States conspired together to pre
vent the execution of the laws; that the Government resolved
to put down the conspiracy, not in the spirit of conquest, but
in that of self-preservation, and that the insurrection has now
been suppressed; and this is all. This is the official report of
the high Executive to his grand constituency.
From the cold official statement, who that did not feel and
know of these eventful years could imagine what scenes of
human sorrow are embraced within the unwritten history of that
period ? There was an insurrection, and it has been suppressed.
Has sated ambition forgotten the immense cost to the country
of the process by which it became what it is? Why, in this
brief history there are hundreds of thousands of treasons un
punished. In this the blood of more than a quarter of a million
murdered victims cries aloud for retributive justice. And this
the President of the United States calls insurrection. If it is
insurrection, in the name of all that is horrible, what is war?
George S. Shanklin [Ky.] particularly opposed the
fourth section of the amendment which forbade compen
sation for emancipated slaves without regard to whether
their owners were loyal or not.
You deny to the States the right of repudiation. Yet, in
the very act of denying that right, you yourselves commit an
act of repudiation. You violate the honor of the nation, which
is most solemnly pledged to payment for the slaves which were
enlisted in the United States army in loyal slave States. Has
such compensation ever been made? It has not. The nation
is pledged to the payment of that debt. The nation to-day owes
to my State more than $10,000,000 under the provisions of that
act. Yet now you propose a constitutional provision denying
both to the States and the general Government the right to pay
THE FOURTEENTH AMENDMENT 431
such debts. By this measure you propose to violate the plighted
faith of the nation ; you propose to practice upon the people an
outrage and a violation of their rights.
Mr. Speaker, what ought to be our policy? Should it be
tyrannical and oppressive, or should it be liberal? We are told
we cannot trust these people. They have given up the right
of secession; they have taken the oath to support the Govern
ment and the laws; what are you going to do with them? Are
you going to hold them in subjugation? England has tried a
policy of that sort toward a noble and generous people, the Irish.
What has been the result of that policy ? Has it been to conquer
them? It has been to implant in the bosom of every Irishman a
deep hatred of England. That hatred has descended from sire
to son; and»I hope it will continue to be transmitted until that
noble and generous people will rise in majesty and power and
secure their freedom. Russia has pursued a similar policy toward
Poland. Has the result been to subjugate the gallant Poles?
They are ready at any moment to rise in rebellion. Austria
has pursued the same policy. The result has always been the
same.
The Southern people whom it is proposed to subjugate are
a noble, brave people. They may have been deluded, they may
have committed a great crime, but they are now anxious to unite
with all of our people to sustain the Government. Will you
receive them? Will you make them your friends? Will you
rather make them your enemies? This question we must solve.
They would be most invaluable friends if you would adopt
a kind, generous policy toward them, receive them and extend to
them equal State and individual rights, and that without delay.
By your treatment prove to them that the war you waged against
them was not a war of conquest or subjugation or from malice or
vengeance, but a war to maintain the Constitution of our fathers,
and the rights of the Union of the States, as you declared it
was when you took up arms and when the strife commenced.
Redeem your plighted faith by your acts and your policy, and
peace, friendship, and prosperity will once more cover our
now distracted country. Then we can bid defiance to the ene
mies of our free institutions. No nation, however proud or
domineering she may be, will dare insult our flag or deny our
just rights. Generations unborn will rise up to praise and
bless your memories.
Let me beseech you in the name and behalf of patriotism,
justice, and a downtrodden and oppressed people, to cease your
war on the President of your selection and choice, who has ex-
432 GREAT AMERICAN DEBATES
hibited to the world the highest order of wisdom, patriotism,
charity, justice, and devotion to the equal rights of man. Dis
charge your Joint Committee on Reconstruction; abolish your
Freedman's Bureau; repeal your Civil Rights bill, and admit
all the delegates from the seceded States to their seats in Con
gress, who have been elected according to the laws of the country
and possess the constitutional qualification, and all will be well.
Henry J. Eaymond [N. Y.] expressed his approval
of all the sections of the bill but the third. He dis
missed as wildly visionary the calculation of Mr. Broom-
all that only one man in twelve in the States lately in
rebellion would be affected by it. The ratio was rather
the reverse, and the result of passing the section would
be to create an oligarchy in the States instead of the
"republican form of government" prescribed by the
Constitution. Furthermore, the passage of the sec
tion would be laid by the South to the partisan de
sire of Republicans to win the next presidential elec
tion. Why incur this odium when it was clearly fore
shadowed that General Grant would be the next Repub
lican candidate, and he was certain to sweep the country
by winning the great majority of votes from all parties
in the North?
The section was as unjust as it was ungenerous to
the South.
The adoption of all the proposed amendments, this one in
cluded, by each of the Southern States, is made in the bill re
ported by the committee a condition essential to their admission
to representation in Congress. Now, the amendments are to be
adopted by the legislatures of the several States. The legisla
tures are elected by all the people — those who have voluntarily
adhered to the insurrection as well as those who have not — for
the gentleman from Pennsylvania [Mr. Broomall] laid special
stress upon the fact that the people are still allowed full control
of their State governments.
These legislatures, thus elected, are expected to ratify all
these amendments, to concede an equality of civil rights, to con
cede a great reduction of their political power in changing the
basis of representation, to concede the repudiation of their debts
and the denial of compensation for their slaves; and for what
THE FOURTEENTH AMENDMENT 433
consideration? What do we offer them in return for all these
concessions ? The right to be represented on this floor, provided
they will also consent not to vote for the men who are to repre
sent them ! Nay, more, that they shall accept as the Representa
tives whom they thus get the right of having here men elected
by a small minority of their people who are supposed and con
ceded to be hostile to them in political sentiment, and against
whom they have been waging a bitter war! We offer them, in
exchange for all these renunciations of political power and of
material advantage, the privilege of being misrepresented in
Congress by men in whose election they had no voice or vote,
and with whose past political action and present political senti
ments they have no sympathy whatever.
Why, sir, this not only "breaks the word of promise to the
hope," it does not even "keep it to the ear." It is not merely
a sham, it is a mockery. The very price by which we seek to
induce their assent to these amendments we snatch away from
their hands the moment that assent is secured. Is there any
man here who can so far delude himself as to suppose for a mo
ment that the people of the Southern States will accede to any
such scheme as this? There is not one chance in ten thousand
of their doing it.
Representation ceases to be of the slightest value to them
under such conditions. They will not seek it or ask for it. They
will infinitely prefer to take the chances of change in the politi
cal councils of the nation, to await the election of a Congress
more propitious to their claims, especially under the comforting
assurance which the gentleman from Pennsylvania [Mr. Stevens]
gave them some two months ago when he said frankly that "it
is of no importance by whom or when or how reconstruction
is effected, for, in three short years, this whole Government will
be in the hands of the late rebels and their Northern allies."
They will readily wait "three short years" for representation
rather than purchase the mockery of it we offer them at such
a price.
The gentleman from Ohio [Mr. Schenck], in vindicating the
policy of this exclusion of the Southern people from the right
of suffrage, insisted that it was necessary as a means of disci
pline; that they are not yet in a proper frame of mind to
take part in the affairs of government; that they are at heart
still unfriendly and hostile to our authority and institutions;
and, that we must treat them as parents do unruly children,
that we must flog them for their offences and then exclude them
from the family table or shut them up in a closet until they
VII— 28
434 GREAT AMERICAN DEBATES
come to a better and more submissive mood. Well, sir, this
might answer if the eight million people with whom we are
dealing would consent to be treated as children, and to regard
us here in Congress as standing in loco parentis toward them.
They might in that case submit tamely to the chastisement we
propose, and possibly profit by it. But they are not children.
They are men, men tenacious of their rights, jealous of their
position, brave, and proud of their bravery, of hot and rebel
lious tempers, and not at all likely to be subdued in spirit or
won to our love by such discipline as the gentleman from Ohio
proposes to inflict. We have chastised them already. We have
defeated their hostility against the Government. And now what
remains? They are to be our fellow-citizens. They must form
part of the people of our country. They are to take part,
sooner or later, in our Government, unless we intend to dis
card the fundamental principle of that Government, the right
of the people to govern themselves. And we cannot afford
to have them, or to make them, sullen, discontented, and re
bellious in temper and in purpose, even if they are submissive
in act.
Why, sir, if history teaches anything, if any principle is
established by the concurrent annals of all nations and all ages,
it is that sentiment cannot be coerced ; that opinions, even, can
not be controlled by force; and that, with any people fit to be
free or to be the countrymen of men who are free, all such efforts
defeat themselves and intensify and perpetuate the hostilities
sought to be overcome. Ireland offers us a signal example of
this, and I am amazed that members upon this floor can shut
their eyes or close their minds to the lessons which her sad his
tory teaches. England, for her harsh dealings with that un
happy land hundreds of years ago, is paying the penalty to-day
and will for all time to come. By mistakes in policy precisely
such in kind as we are making now, England, hundred of years
ago, planted in Ireland the seeds of that disaffection which, in
spite of all her attempts to undo the wrong, in spite of abundant
legislation in redress of grievances, and for the good of Ireland,
from time to time bursts out into feeble but bitter insurrection,
and which to-day blooms into that shadowy phenomenon of
Penianism, which terrifies one continent and puzzles and poisons
the other.
George S. Boutwell [Mass.] also spoke upon the third
section of the bill.
THE FOURTEENTH AMENDMENT 435
I freely confess that the adoption of the third section is not
necessary to the subject-matter which we have in hand. My
own views of reconstruction lead me in the opposite direction.
I should prefer to include those who are our friends rather than
exclude even those who are our enemies. But, inasmuch as gen
tlemen on this floor are not prepared, as they say, to include
those in the governing force of the country who have sustained
the country, I see no safety in the present except in some sort of
exclusion of those who are its enemies. We are to consider what
sort of enemies these men are. We have defeated them in arms,
but in the proposition of the Democratic party we invite them in
to the councils of the nation, to the only field in which they have
any chance of success in the contest in which they have been
engaged.
Who are these men? They are the men who to-day are
radically, honestly, persistently, and religiously opposed to this
Government if this Government exercises its functions. Gentle
men may not have heard of what Mr. Stephens told the commit
tee. Alexander H. Stephens was believed to be the most con
servative, most Union-loving man in the whole Southern coun
try; and, if the opinions to which I shall refer be his opinions,
with how much stronger reason may we suppose that they are
the opinions of those to whom formerly he himself was some
what opposed. What does he tell us? He tells us that in 1861
he protested against the action of the secessionists, not because
he believed that they had not a constitutional basis upon which
to stand, but because he thought secession bad policy, and he
says that to-day his opinions are unchanged ; that is to say, Mr.
Stephens believes that this Government has no right to exist if
the insignificant State of Florida, for instance, thinks it ought
not to exist.
Mr. Stephens denies the constitutional efficacy of our amend
ment abolishing slavery. He says that slavery has been abolished
by the States. He says that the law taxing the people of this
country has no constitutional force, because they are not repre
sented. Do you not see that his insidious and dangerous doc
trines, which are responded to by the whole Democratic party of
the country, portend the destruction of the public credit, the
repudiation of the public debt, and the disorganization of so
ciety ?
It is admitted by gentlemen on the other sides of the House
that when they present a Representative here he must be a loyal
man. But I need not say to gentlemen acquainted with the tech
nicalities of the law, that a loyal man, for all purposes of repre-
436 GREAT AMERICAN DEBATES
sentation, is a man whose disloyalty cannot be proved. When
we open the doors of the Senate and of this House to Representa
tives from that section of the country, they will only have to
present men who cannot be convicted of having participated
actively and willingly in the work of treason ; but they may send
men here who represent treasonable and disunion opinions, and
we shall have no power to protect ourselves against them. When
ever was a more insidious idea presented to the people of this
country than that there is any security in demanding merely
loyal Representatives? We are false to our duty if we do not
go further and require that, in each of these States, before they
are allowed representation, the masses of the people shall be
loyal, for the Representative will reflect the views of the people.
You cannot gather figs from thorns, or grapes from thistles. You
must wait, if it be necessary to wait, until there is a loyal
controlling public sentiment in each one of these States.
Sir, it will be found that the Union party stands unitedly
upon two propositions. The first is equality of representation,
about which there is no difference of opinion. The second is that
there shall be a loyal people in each applicant State before any
Representative from that State is admitted in Congress. And
there is a third : a vast majority of the Republican party, soon to
be the controlling and entire force of that party, demand suffrage
for our friends, for those who have stood by us in our days of
tribulation. And for myself, with the right of course to change
my opinion, I believe in the constitutional power of the Govern
ment to-day to extend the elective franchise to every loyal
male citizen of the Republic.
On May 10 Samuel J. Eandall [Dem.], of Pennsyl
vania, spoke, chiefly in justification of the support of the
President by the democracy.
Complaint is made, Mr. Speaker, of the support which the
Democratic party, as a party, throughout the country is giving
to the President in his plan of restoration. That should not
surprise any one. The Democratic party, during the period of
the war, have closely adhered to the Constitution and the laws
of the country. They find in President Johnson that same dis
position to adhere to the Constitution and the laws. The course
of the Democracy, in their support of the President, is actuated
by a devotion to principle. It does not emanate from any seek
ing for office or from any other sordid motive.
There is another matter to which I wish to direct the atten-
THE FOURTEENTH AMENDMENT 437
tion of the House, and through the House the attention of the
country. I would suggest that in the view of just and reason
able men the time has arrived when this system of virulent abuse
of the President of the United States should cease. It is time
that there should be an end of these appeals to the morbid
feelings and prejudices of the people of the North, appeals
calculated to array the Northern people against the people of
the South, who have laid down their arms, and who, I believe,
are now seeking in good faith to conduct themselves in allegiance
to the Constitution. They have been punished severely, not
more severely, perhaps, than they deserve. But why should
we not accept their words as expressing their real sentiments?
Why should we treat them as aliens and outlaws, a policy which
must for a long time prevent us from securing the full benefits
of our victory?
Gentlemen seem to fear that unless something is done by
legislation to prevent it the great conservative men of the
country, under the leadership of Andrew Johnson, will come
into possession of the legislative branch of the Government.
Nothing can avert this. Your reckless extravagance, your un
numbered violations of law, your constant effort to change the
organic law for party purposes, your persecutions of the Presi
dent who has planted himself upon the plan of restoration which
Mr. Lincoln determined upon, and your careless mode of taxa
tion, relieving affluent men and heaping the expenses of our
debt upon those least able to bear it — all these point to your
certain overthrow.
The Democracy stand ready to operate with any party or
set of men to crush out the party which started with a disposi
tion to let the ''South go," and now at the close of the war
seek the same practical result — a continued separation of the
States of the Union.
Myer Strouse [Dem.], of Pennsylvania, incorporated
in his speech an article from a recent issue of the New
York Times (the paper of Henry J. Eaymond). It read
in part:
' ' As a plan of pacification and reconstruction the whole thing
is worse than a burlesque. It might be styled a farce, were the
country not in the midst of a very serious drama. Its proper
designation would be 'A plan to prolong indefinitely the ex
clusion of the South from Congress by imposing conditions to
438 GREAT AMERICAN DEBATES
which the Southern people will never submit. This being the
obvious scope and tendency of the proposition, we are bound
to assume that it clearly reflects the settled purpose of the com
mittee.
"There is an anomalous feature in the affair as it stands,
which of itself reveals the monstrous nature of the pretensions
set up by the committee. All the provisions of the proposed
amendment imply the adoption of the extreme view in regard
to the relation of the South to the Union. We must begin by-
assuming that what were States before the war are mere terri
tories now, or this attempt to dictate terms as the condition of
recognition becomes undisguised usurpation. And yet the
amendment, on its face, declares the existence, as States, of all
the States recently in rebellion, and presupposes the exercise by
their several legislatures of the highest constitutional attribute
of State sovereignty.
"From the dilemma into which the committee have thus
plunged there is no logical escape. If the Southern States are
in a condition by their legislatures to ratify or reject a constitu
tional amendment they must of necessity be qualified to send
Senators and Representatives to Congress, subject only to the
judgment of either House as to the eligibility of the persons
sent. A State which may assist in the sovereign task of molding
the Constitution under which Congress acts may surely demand
a voice in what the Constitution creates. The greater right
covers the lesser right in this or in other cases. On the other
hand, if the Southern States are not entitled to admission to
Congress — are in the condition of Territories — then it follows
that they are not entitled to any lot or part in the business of
amending the Constitution. Upon which horn shall the ' central
directory' be impaled? Shall we take it that this prodigious
amendment, this mighty mouse brought forth by a mountain
after five months' parturition, does not mean what it says when
it speaks of the States lately in rebellion as States still, with
their sovereign functions unimpaired, though for a time un
interrupted? Or shall we conclude that the doctrine of State
suicide is abandoned, the doctrine of subjugation given up, and
the criminal blunder of which the radicals have been guilty in
excluding the South from Congress at length confessed? Let
there be explicit answers upon these heads of the subject. As
it at present appears the position of the committee is utterly
untenable.
"Aside from these points the worthlessness of the com
mittee's proposition is obvious. It cannot by any possibility
THE FOURTEENTH AMENDMENT 439
effect anything. With all their errors and faults the Southern
people have shown that they are not cowards. They will not
belie their nature by writing themselves down slaves at the
bidding of a committee appointed to consider the question of
reconstruction. ' '
Gen. Nathaniel P. Banks [Mass.] said that there
were two alternative methods by which to accomplish
genuinei reconstruction: extension of the suffrage to
negroes and discrimination between loyal and disloyal
white voters. The former he dismissed as at present im
practicable. In regard to the second he denied that
the President's amnesty had restored the recipients to
their political rights.
The power of declaring who shall exercise the franchise is
in the first instance conferred upon the States by the first ar
ticle of the Constitution; and, in the second instance, by the
provision conferring the right to judge of the election of its
members on the Congress of the United States, and without
their concurrence the President has no right to invest franchise
in anybody.
General Banks believed that discrimination between
loyal and disloyal citizens was entirely practicable.
It was said by the gentleman from Ohio [Mr. Garfield]
that there is no tribunal which can judge of the proper or
improper enforcement of this provision. That is an error. In
regard to the election of members of Congress each House is
the tribunal.
In regard to the choice of electors for President and Vice-
President of the United States, which seems to have caused more
apprehension, the solution is equally simple, certain, and just.
There is always a tribunal that is competent to judge whether
this provision of the Constitution has been properly enforced.
It is not altogether a new question. In 1844 in the State of
Tennessee one hundred and seventy-five or one hundred and
eighty men voted directly for Polk and Dallas as candidates for
President and Vice-President instead of for the presidential
electors. If those votes given against the law were counted, then
Mr. Polk would receive the electoral vote of that State. If they
were excluded, then the electoral vote of the State would be
440 GREAT AMERICAN DEBATES
given for Henry Clay. In 1856 Wisconsin did not vote for elec
tors on the day required by law. Her vote when presented here
was not counted. Had the choice of President been in the
balance in either case Congress would have been the tribunal
to decide the issue. The two Houses would have met in conven
tion according to the Constitution. If they agreed the question
would have been decided, and the election of President declared
in accordance therewith. If there was difference of opinion in
regard to the question presented, the Senate would have with
drawn to its chamber; the House would have remained in its
seats; and then after mature deliberation, it may have been for
weeks or months, each House would have determined what should
be done. And should the two Houses not come to the same
conclusion, and refuse to recognize an election, the President
of the Senate, or in his absence the honorable Speaker of this
House, would have administered the Government until another
election could have been held. This would have been done by
resolution of Congress within eighteen months from the 4th of
March when the vacancy was found to exist. The Constitution
is equal to every emergency, and what there is defective, if
anything, the wisdom of the people will supply.
Andrew J. Rogers [Dem.], of New Jersey, vehemently
opposed the purpose of the bill (frankly confessed at the
beginning of the debate by Mr. Stevens, and repeated
by other radical Republicans, that the amendment was
calculated to force the South to adopt negro suffrage
in order to preserve equality of representation with the
North).
God deliver this people from such a wicked, odious, pestilent
despotism ! God save the people of the South from the degrada
tion by which they would be obliged to go to the polls and vote
side by side with the negro !
He also repudiated the comparison instituted by Mr.
Broomall between the murderer Probst and Alexander H.
Stephens.
Rebellion or revolution never has been considered by the
civilized world as having that odiousness and moral turpitude
that attach to men for the commission of heinous crimes. And
when the honorable gentleman from Pennsylvania undertakes to
THE FOURTEENTH AMENDMENT 441
charge the great masses of the South as being murderers like
Probst, he goes counter to the history of the world, and against
the revolution which in the end gave Magna Charta to England,
and which handed down to this country those bulwarks of liberty
upon which our Declaration of Independence and our Constitu
tion are founded. I say they are not murderers, they are not
thieves, they are not felons; they are simply political convicts
before the altar of patriotism. And the patriotic man who now
sits in the presidential chair has, in the spirit of Christianity
and humanity, extended to these men pardons, which I say,
which the courts say, which tradition says, and which the history
of the world says, relieve their recipients of all the effects con
sequent upon the crime.
Henry L. Dawes [Mass.] opposed the opinion of his
colleague, General Banks, that Congress could pass
upon disputed votes in the Electoral College.
There is no legislation in the land upon the subject. The
only provision governing the counting of the votes of the Elec
toral College is in the Constitution itself, and it is in these
words :
"The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates,
and the votes shall then be counted."
But who shall decide, if there be a dispute, whether a vote
has come from a man legally chosen? There is no tribunal yet
erected to determine that fact. Chancellor Kent says that it is
casus omissus, a case that has not been provided for by the
f ramers of the Constitution ; that there is no provision in the
laws or the Constitution of the United States by which that
may be determined. Whether or not it be beyond our power
under the Constitution to make such provision, certain it is that
we have made no such provision. The two Houses in their
separate capacity act as legislators, and legislators alone, and
their functions are all prescribed by the Constitution itself. This
is not one of them. They are not clothed with the judicial power
of passing upon the validity of an election of President and
Vice-President ; and suppose the Senate comes to one conclusion
and the House to another, what is the result? Suppose the
Senate in the Wisconsin case had determined that Mr. Buchanan
was elected and the House in its separate capacity had deter
mined that no one was elected, the Constitution requires that
the House, thereupon, shall proceed immediately, yes, imme-
442 GREAT AMERICAN DEBATES
diately is the command of the Constitution, without the con
currence of the Senate, to choose a President. Then comes the
terrible peril in which this country will be involved, the ordeal
through which it will have to pass where the House of Repre
sentatives determine one way and the Senate the other.
I do not mean to say it is not within our power under the
Constitution to provide a tribunal; upon that question there
is no occasion to remark. I have only to say that as yet no
such tribunal has been provided. On the occasion alluded to
by my colleague it was the opinion of learned men both in the
House and in the Senate that the country barely escaped a
revolution. They did not decide, as I understood my colleague
to say, by passing into their respective halls whether the vote
of Wisconsin should be counted or not. The question was not
decided, and remains to be decided to this day.
Israel Washburn [Me.] in the House, and Mr. Seward and
Mr. Collamer in the Senate, declared the impotency of the two
Houses or any tribunal known to the law to solve the difficulty,
and at the same time rejoiced at the escape from peril which
the immateriality of the vote in question had secured, but point
ing out the terrible danger to which the nation would be ex
posed if ever a material vote in the Electoral College should be
questioned.
John A. Bingham [0.] thought that no constitutional
amendment was needed to disfranchise citizens; that
an act of Congress was all that was required, and he
therefore proposed to eliminate the third section from
the amendment and incorporate it in a bill.
The franchise of a Federal elective office is as clearly one
of the privileges of a citizen of the United States as is the
elective franchise for choosing Representatives in Congress or
presidential electors. They are both provided for and guar
anteed in your Constitution. Why, then, prohibit rebels from
the enjoyment of the first for life by an act of Congress and
restrict the second for a term of years by a constitutional
amendment? To be sure we all agree, and the great body of
the people of this country agree, and the committee thus far in
reporting measures of reconstruction agree, that the exercise of
the elective franchise, though it be one of the privileges of a
citizen of the Republic, is exclusively under the control of the
States. But, sir, the committee never intimated and never in-
THE FOURTEENTH AMENDMENT 443
tended to intimate by any measure they have reported that any
State lately in insurrection can exercise either that power or
any other until it is restored to its constitutional relation to
the Union, save by the express or implied consent of the Congress
of the United States, nor that after being restored they can exer
cise that power contrary to the express conditions prescribed
by Congress for their restoration. The power to prescribe these
conditions is exclusively in Congress.
That is the philosophy of every measure of reconstruction
now pending before the House. And that is wherein it is
opposed to the opinion of gentlemen on the other side of
the House who have spoken, I am sorry to say — and I say it
without the slightest intention of giving offence to any man —
not in the spirit of representatives of the people, but in the
spirit of partisans. For myself, I cannot approach the discussion
of this great question, which concerns the safety of all, in the
spirit of a partisan. God forbid that I should approach this
subject in any other character than that of a representative of
the people — a representative of the people not unmindful of the
oath which I took, sir, before your tribune.
Mr. Stevens, who began the debate, closed it. Mem
bers crowded about Mm in such eagerness to hear him
that his speech was interrupted by protests from those
who were unable to catch his words. With character
istic boldness he said :
I am glad, sir, to see great unanimity among the Union
friends in this House on all the provisions of this joint resolu
tion except the third one. I am not very much gratified to see
any division among our friends on that which I consider the
vital proposition of them all. Without that, it amounts to
nothing. I do not care the snap of my finger whether it be
passed or not if that be stricken out. Before another Congress
shall have assembled here, and before this can be carried into
full effect, there will be no friends of the Union left on this
side of the House to carry it out, as that side of the House
will be filled with yelling secessionists and hissing copperheads.
Give us the third section or give us nothing. Do not balk us
with the pretence of an amendment which throws the Union
into the hands of the enemy before it becomes consolidated.
Gentlemen say I speak of party. Whenever party is neces
sary to sustain the Union I say rally to your party and save
the Union. I do not hesitate to say, at once, that section is
444 GREAT AMERICAN DEBATES
there to save or destroy the Union party, is there to save or
destroy the Union by the salvation or destruction of the Union
party.
The gentleman from Ohio [Mr. Bingham] who has just taken
his seat thinks it difficult to carry it into execution, and he
proposes to put it into a bill which the President can veto.
Will my friend tell me how much easier it is to execute it as
a law than as a provision of the Constitution? I say if this
amendment prevails you must legislate to carry out many parts
of it. You must legislate for the purpose of ascertaining the
basis of representation. You must legislate for registry such
as they have in Maryland. It will not execute itself, but, as
soon as it becomes a law, Congress, at the next session, will
legislate to carry it out both in reference to the presidential
and all other elections as we have the right to do. So that
objection falls to the ground.
Gentlemen tell us it is too strong — too strong for what?
Too strong for their stomachs, but not for the people. Some
say it is too lenient. It is too lenient for my hard heart. Not
only to 1870, but to 18070, every rebel who shed the blood
of loyal men should be prevented from exercising any power in
this Government. That even would be too mild a punishment
for them.
Gentlemen here have said you must not humble these people.
"Why not? Do not they deserve humiliation? Do not they de
serve degradation? If they do not, who does? What criminal,
what felon deserves it more, sir? They have not yet confessed
their sins; and He who administers mercy and justice never
forgives until the sinner confesses his sins and humbles himself
at His footstool. Why should we forgive any more than He ?
But we are told that we must take them back as equal
brothers at once. I shall not agree they shall come back except
as supplicants in sackcloth and ashes. Let them come back
and ask forgiveness, and let us then consider how many we will
forgive and how many we will exclude. All I regret is, this is
not sufficiently stringent.
I regret that the true men of these States cannot be brought
in, but they cannot be brought in with rebel constituencies be
hind them. They would misrepresent their States. Therefore I
can never agree to let them in under the present state of affairs.
Let us have probation ; let us be sure that something more than
mere willingness to come in has been felt by them.
Mr. Speaker, I do not intend to occupy many minutes. I
was indeed astonished to find my respected colleague [M. Russell
THE FOURTEENTH AMENDMENT 445
Thayer], I will not say so tender-hearted, but so lenient to
those toward whom mercy is not rendered necessary. But I
know so well his natural kindness of heart and his proximity
to that eloquent divine [Henry Ward Beecher] who so lately
has slaughtered whole herds of fatted calves, that I cannot be
much surprised at it. But, sir, if he is so fond of such associates,
let me suggest in all kindness to him that he can find better
company nearer home. He lives very near Cherry Hill, where
there is a State institution containing several hundred inmates
whom, if he wishes to forgive and enfranchise, he will find at
present a little restrained of their rights. They have done
nothing but err. There is no blood upon their hands ; they have
only erred in committing such little acts as arson and larceny.
Let him go to one of those corridors and cause it to be opened
and they will flock around him, and he will see men who
are not half as bloody and have not committed half as many
crimes as the rebels whom he wishes to see immediately admitted
here.
Now, sir, for my part I am willing they shall come in when
they are ready. Do not, I pray you, admit those who have
slaughtered half a million of our countrymen until their clothes
are dried, and until they are reclad. I do not wish to sit side
by side with men whose garments smell of the blood of my
kindred. Gentlemen seem to forget the scenes that were enacted
here years ago, when the men that you propose to admit occupied
the other side of the House ; when the mighty Toombs, with his
shaggy locks, headed a gang who, with shouts of defiance on
this floor, rendered this a hell of legislation.
Ah, sir, it was but six years ago when they were here, just
before they went out to join the armies of Catiline. Those of
you who were here then will remember the scene in which
every Southern member, encouraged by their allies, came forth
in one yelling body, because a speech for freedom was being
made here ; when weapons were drawn, and Barksdale 's bowie-
knife gleamed before our eyes. Would you have these men
back again so soon to reenact those scenes'? Wait until I am
gone, I pray you. I want not to go through it again. It will
be but a short time for my colleague to wait. I hope he will
not put us to that test.
MR. THAYER. — I wish to ask my colleague in this connection
whether he thinks he can build a penitentiary big enough to
hold eight million people.
MR. STEVENS. — Yes, sir, a penitentiary which is built at the
point of the bayonet down below, and if they undertake to come
446 GREAT AMERICAN DEBATES
here we will shoot them. That is the way to take care of these
people. They deserve it, at least for a time.
Now, Mr. Speaker, I move the previous question.
The amendment was put to vote and was passed with
the requisite two-thirds majority — 128 yeas, 37 nays,
not voting 19. Not a single Republican voted nay. Mr.
Raymond voted ' * Aye ! ' ' with a ringing response which
elicited loud applause from both the floor and galleries.
DEBATE IN THE SENATE
The Senate discussed the details of the bill rather
than its principle. To prevent dispute over the words
"inhabitant" and " citizen, " the phrase "inhabitants,
being citizens of the United States, ' ' was adopted. There
was considerable debate over the disqualification-for-
office clause. Thomas A. Hendricks [Ind.] wished to dis
qualify only those who had during their term of office
engaged in rebellion. Jacob M. Howard [Mich.] thought
that engaging in rebellion after such service was also
morally heinous.
It seems to me that where a person has taken a solemn oath
to support the Constitution of the United States there is a
fair implication that he cannot afterwards commit an act which
in its effect would destroy the Constitution of the United States
without incurring at least the moral guilt of perjury."
Senator Howard's position was maintained by a
large majority. It was also decided, after much discus
sion, that these disabilities could not be removed, even
though those affected had been pardoned by the Presi
dent, except by a vote of two-thirds of both chambers
of Congress.
The bill as amended passed the Senate on June 8 by
a vote of 33 yeas to 11 nays. Senators Cowan, Doolittle,
and Johnson voted in the negative. The House con
curred in the Senate amendments on June 13 by a vote
of 120 to 32. The bill having received two-thirds ma
jority in advance (as required on a constitutional
amendment) was not presented to the President and was
THE FOURTEENTH AMENDMENT 447
submitted at once to the States for approval. It was
ratified by State after State, until on July 28, 1868, it
had received the three-fourths majority of the States
necessary for it to become a law.
READMISSION OF TENNESSEE
When Tennessee, on July 19, 1866, ratified the amend
ment, the House passed a joint resolution restoring the
State to the Union — 125 ayes to 12 nays, the latter being
all cast by radical Republicans. Thaddeus Stevens
[Pa.], however, voted aye. The Senate concurred after
modifying the preamble of the resolution to read that
"the said State government can only be restored to its
former political relations in the Union by the consent of
the law-making power of the United States. " This was
done to oppose the President's theory that executive
action alone was needed to accomplish the restoration.
While the President signed the bill (on July 24) he
nevertheless maintained his position in a special message
(July 25) on the subject. It was read the same day in
the House.
"RATIFYING AN ANOMALY"
SPEECH OF PRESIDENT JOHNSON IN ADMITTING TENNESSEE INTO
THE UNION
If, as is declared in the preamble, "said State government
can only be restored to its former political relations in the Union
by the consent of the law-making power of the United States,"
it would really seem to follow that the joint resolution which
at this late day has received the sanction of Congress should
have been passed, approved, and placed on the statute books
before any amendment to the Constitution was submitted to the
legislature of Tennessee for ratification. [Applause from Demo
cratic side.] Otherwise the inference is plainly deducible that,
while in the opinion of Congress the people of a State may be
too strongly disloyal to be entitled to representation, they may
nevertheless, during the suspension of their "former proper,
practical relations to the Union," have an equally potent voice
with other and loyal States in propositions to amend the Con-
448 GREAT AMERICAN DEBATES
stitution, upon which so essentially depend the stability, pros
perity, and very existence of the nation.
Earnestly desiring to remove every cause of further delay,
whether real or imaginary, on the part of Congress to the
admission to seats of loyal Senators and Representatives from
the State of Tennessee, I have, notwithstanding the anomalous
character of this proceeding, affixed my signature to the resolu
tion. [General applause and laughter.] My approval, however,
is not to be construed as an acknowledgment of the right of
Congress to pass laws preliminary to the admission of duly
qualified Representatives from any of the States. [Great
laughter.] Neither is it to be considered as committing me to
all the statements made in the preamble [renewed laughter],
some of which are, in my opinion, without foundation in fact,
especially the assertion that the State of Tennessee has ratified
the amendment to the Constitution of the United States pro
posed by the Thirty-ninth Congress. [Laughter.] No official
notice of such ratification has been received by the Executive or
filed in the Department of State; on the contrary, unofficial
information from most reliable sources induces the belief that
the amendment has not yet been constitutionally sanctioned by
the legislature of Tennessee. The right of each House, under
the Constitution, to judge of the elections, returns, and qualifica
tions of its own members is undoubted, and my approval or dis
approval of the resolution could not in the slightest degree
increase or diminish the authority in this respect conferred upon
the two branches of Congress.
In conclusion, I cannot too earnestly repeat my recommenda
tion for the admission of Tennessee, and all other States, to a
fair and equal participation in national legislation when they
present themselves in the persons of loyal Senators and Rep
resentatives who can comply with all the requirements of the
Constitution and the laws. By this means harmony and recon
ciliation will be effected, the practical relations of all the States
to the Federal Government reestablished, and the work of restor
ation, inaugurated upon the termination of the war, successfully
completed. [Applause from the Democratic side.]
CHAPTEE XIII
EATIFICATION OF THE FOUKTEENTH AMENDMENT
[CONTROVERSY BETWEEN CONSERVATIVES AND RADICALS]
The ''Harmony" Convention (Administration): Sen. Edgar Cowan [Pa.]
Eeports Resolutions, and Representative Henry J. Raymond [N. Y.],
Reads an Address — Reply of President Johnson to Delegation from the
Convention: "The Despotism of Congress" — The "Southern Loyal
ist" Convention (Radical): Speech of ex-Attorney-general James
Speed [Ky.], Chairman; Arraignment of the President in Resolutions;
Address of Sen. John A. J. Creswell [Md.] — The Soldiers' Convention
(Administration) : Speech of Gen. John E. Wool, Chairman— The Cit
izen Soldiers' and Sailors' Convention: Speech of Gen. Jacob D. Cox
[O.], Chairman; Resolutions Read by Gen. Benjamin F. Butler
[Mass.] — Massacre of Loyalists at New Orleans — Speaking Tour of
President Johnson — His Remarks in Cleveland on "Who Is Traitor —
The President or Congress?" — His Remarks in St. Louis on "The New
Orleans Riot — Who Caused It?" "Some Named Him with Iscariot,"
and "Kicking Out the Radicals" — Radical Victories in Congressional
and State Elections — Popular Demand for Negro Suffrage.
THE year of 1866 is memorable in American politics
for the fact that, though it came midway between
presidential elections, during it there were held
four great national political conventions. The reason
for this was that elections to the Fortieth Congress were
to be held in the fall, as well as to the State legislatures,
which were to choose United States Senators ; and that,
if less than a two-thirds majority of Radicals were sent
to the national legislature, then the President, even if
he could not enforce his policy of reconstruction, would
be enabled by his veto to prevent the adoption of an op
posing one. The Administration hardly ventured to
hope that it would secure a majority in its favor, but
trusted to hold matters at a standstill until a revolution
VII— 29 449
450 GREAT AMERICAN DEBATES
of public sentiment should occur and it would be sus
tained two years later at the presidential election.
THE HAKMONY CONVENTION [ADMINISTRATION]
The first of these national conventions was an Ad
ministration one, held at Philadelphia on August 14.
Delegates were present from every State of the coun
try, and the national harmony which this indicated was
paraded in spectacular fashion by having them enter
the hall by couples — a Northern delegate arm-in-arm
with a Southern. This gave the humorists of the Eadical
press and platform an admirable opportunity to carica
ture the convention as a "Noah's Ark," into which there
went "two and two of clean beasts, and of beasts that
are not clean, " which they used with great effect during
the ensuing congressional campaign.
The Democrats were greatly in the majority in the
assembly, causing it to be stigmatized by the Opposition
as a "copperhead convention. " Clement L. Vallandig-
ham [0.] attempted to take part in the convention, but
so great was the opposition to him by the Eepublicans
that he withdrew at an early stage of the proceedings.
The object of the convention was to declare the right
of every State to representation in Congress, and this
was embodied in a series of resolutions reported by Sen
ator Edgar Cowan [Pa.], and an address read by Eep-
resentative Henry J. Eaymond [N. Y.]. Mr. Eaymond
took an extreme position, saying:
It is alleged that the condition of the Southern States and
people is not such as renders safe their readmission to a share
in the government of the country, that they are still disloyal
in sentiment and purpose, and that neither the honor, the credit,
nor the interest of the nation would be safe if they were re
admitted to a share in its counsels. Even if this were so, he
said: "We have no right to deny to any portion of the States
or people rights expressly conferred upon them by the Con
stitution of the United States, and we have no right to distrust
the purpose or the ability of the people of the Union to protect
and defend under all contingencies, and by whatever means may
be required, its honor and its welfare."
PRESIDENT VS. CONGRESS 451
On August 18 a delegation from the convention called
upon the President and delivered him a report of its
proceedings.
In reply to an address by the chairman (Senator Eev-
erdy Johnson, of Maryland) President Johnson deliv
ered the following remarks, which were later included as
a charge against him in his impeachment for high crimes
and misdemeanors [see Volume IX, chapter n].
THE DESPOTISM OF CONGRESS
PRESIDENT JOHNSON
So far as the executive department of the Government is
concerned, the effort has been made to restore the Union, to heal
the breach, to pour oil into the wounds which were consequent
upon the struggle, and (to speak in common phrase) to prepare,
as the learned and wise physician would, a plaster healing in
character and coextensive with the wound. We thought, and
we think, that we had partially succeeded, but as the work
progressed, as reconstruction seemed to be taking place, and the
country was becoming reunited, we found a disturbing and
marring element opposing us. In alluding to that element, I
shall go no further than your convention and the distinguished
gentleman who has delivered to me the report of its proceedings.
I shall make no reference to it that I do not believe the time
and the occasion justify.
We have witnessed in one department of the Government
every endeavor to prevent the restoration of peace, harmony,
and union. We have seen hanging upon the verge of the
Government, as it were, a body called, or which assumes to be,
the Congress of the United States, while in fact it is a Congress
of only a part of the States. We have seen this Congress
pretend to be for the Union, when its every step and act tended
to perpetuate disunion and make a disruption of the States
inevitable.
We have seen Congress gradually encroach step by step upon
constitutional rights, and violate, day after day and month
after month, fundamental principles of the Government. We
have seen a Congress that seemed to forget that there was a
limit to the sphere and scope of legislation. We have seen
a Congress in a minority assume to exercise power which, allowed
to be consummated, would result in despotism or monarchy itself.
452 GREAT AMERICAN DEBATES
THE "SOUTHERN LOYALISTS " CONVENTION [RADICAL]
The Radicals accepted the implicit challenge of the
convention, and, in order to disprove that they were a
sectional party, held at the same city two weeks later
(September 3) a convention which was ostensibly called
by Southern loyalists to secure the cooperation of their
Northern friends. It was not possible to secure a full
representation from the South, but still quite a number
of Abdiels, "faithful among the faithless, " were present,
of whom, perhaps, the chief was Governor Andrew J.
Hamilton, the staunch Unionist of Texas. Governor
Hamilton presented to the convention the gavel which
had been used in the Secession Convention of South
Carolina, saying that it seemed a poetic retribution that
the same instrument which had rapped the South into
disunion and anarchy should call it back to loyalty and
concord.
The Northern States were fully represented, and that
by their most distinguished officials and statesmen. The
most significant act of the convention was its choice as
permanent chairman of James Speed [Ky.], the South
ern man who had resigned his seat in the Cabinet [as
Attorney-General] because he opposed the President's
policy. On taking the chair Mr. Speed condemned very
freely the President and the convention which supported
him.
The convention came here simply to record in abject sub
mission the commands of one man. The loyal Congress of the
United States had refused to do his commands; and, whenever
you have a Congress that does not resolutely and firmly refuse,
as the present Congress has done, to act merely as the recording
secretary of the tyrant at the White House, American liberty
is gone forever.
Why was that convention here? It was here in part be
cause the great cry came up from the white man of the South —
My constitutional and my natural rights are denied me; and
then the cry came up from the black man of the South — My
constitutional and my natural rights are denied me. These
complaints are utterly antagonistic, the one to the other; and
PRESIDENT VS. CONGRESS
453
this convention is called to say which is right. Upon that ques
tion, if upon none other, as Southern men, you must speak out
your mind. Speak the truth as you feel it, speak the truth as
"NOT ACCORDING TO THE CONSTITUTION"
From the collection of the New York Public Library
you know it, speak the truth as you love permanent peace, as
you may hope to establish the institutions of this Government
so that our children and our children's children shall enjoy a
peace that we have not known.
454 GREAT AMERICAN DEBATES
The address agreed upon by the convention was in
the form of an appeal * * from the loyal men of the South
to their fellow-citizens of the United States. " It is thus
summarized by Mr. Elaine :
ARRAIGNMENT OF PRESIDENT JOHNSON
RESOLUTIONS OF THE " SOUTHERN LOYALIST" CONVENTION
The representatives of eight million of American citizens
"appeal for protection and justice to their friends and brothers
in the States that have been spared the cruelties of the rebellion
and the direct horrors of civil war. Having lost our champion
we return to you who can make Presidents and punish traitors.
Our last hope, under God, is the unity and firmness of the
States that elected Abraham Lincoln and punished Jefferson
Davis.
"We cannot better define at once our wrongs and our wants
than by declaring that since Andrew Johnson affiliated with his
early slanderers and our constant enemies his hand has been
laid heavily upon every earnest loyalist of the South.
"History, the just judgment of the present and the certain
confirmation of the future, invites and commands us to declare
that after neglecting his own remedies for restoring the Union
Andrew Johnson has resorted to the weapons of traitors to
bruise and beat down patriots.
"After declaring that none but the loyal should govern the
reconstructed South, he has practiced upon the maxim that none
but traitors shall rule.
"In the South he has removed the proved and trusted pa
triot from office, and selected the unqualified and convicted
traitor.
"After brave men who had fought the great battle for the
Union had been nominated for positions, their names were re
called and avowed rebels substituted.
"Every original Unionist in the South who stands fast to
Andrew Johnson's covenants from 1861 to 1865 has been os
tracized.
"He has corrupted the local courts by offering premiums
for the defiance of the laws of Congress, and by openly dis
couraging the observance of the oath against treason.
"While refusing to punish one single conspicuous traitor,
though great numbers have earned the penalty of death, more
than one thousand devoted Union soldiers have been murdered
PRESIDENT VS. CONGRESS 455
in cold blood since the surrender of Lee, and in no cases have
their assassins been brought to judgment.
"He has pardoned some of the worst rebel criminals, North
and South, including some who have taken human life under
circumstances of unparalleled atrocity.
"While declaring against the injustice of leaving eleven
States unrepresented, he has refused to authorize the liberal
plan of Congress, simply because they have recognized the loyal
majority and refused to perpetuate the traitor minority.
"In every State south of Mason and Dixon's line his policy
has wrought the most deplorable consequences — social, moral,
and political."
Senator John A. J. Creswell [McL] presented an ad
dress formed on these indictments. The main points of
the address, as well as of all the speeches made during
the convention, were that the adoption of the Fourteenth
Amendment to the Constitution was imperatively neces
sary to secure the rights of the loyal men of the South,
and that the Administration would not be permitted to
evade this, the great and fundamental political issue of
the time.
THE SOLDIERS' CONVENTION [ADMINISTRATION]
It was clearly seen that the vote of the Union soldiers
would determine the coming congressional elections. Ac
cordingly, on September 17, the Administration party
held a third national convention at Cleveland, to which
prominent army officers had been invited in order to
show that the sentiment of those who had put down the
Rebellion was opposed to coercive measures against the
South. The venerable Gen. John E. Wool, retired from
the United States Army, presided. In Ms speech on
taking the chair he declared that the Radical party would
not stop short of civil war in its endeavor to place the
freedmen on an equality with their former masters.
"These revengeful partisans would leave their country
a howling wilderness for the want of more victims to
gratify their insatiable cruelty. " The generals present
were either Democrats or conservative Republicans who,
456 GREAT AMERICAN DEBATES
it was seen, would inevitably join the Democratic party
in their opposition to the Radical policy.
During the convention a meeting of Confederate of
ficers was in session in Memphis, Tenn., and this sent a
telegram expressing sympathy with the Cleveland assem
bly. Among the signers was Gen. Nathan B. Forrest,
who had been held responsible by a congressional com
mittee of investigation for the massacre of negro sol
diers at the taking of Fort Pillow [see Volume VI, page
253]. Though further investigation had tended to ex
onerate Forrest, nevertheless he remained extremely
odious to the Union soldiers in general, and the fact of
his indorsing the Cleveland convention caused it to be
greatly discredited as representative of the real soldier
sentiment of the country.
THE CITIZEN SOLDIEES' CONVENTION [BADICAL]
Because the officers of the regular army had played
a conspicuous part in the Cleveland convention, and be
cause it had there been charged that the Radicals were
bent on plunging the country into another civil war, the
leaders of the Opposition, in response to a spontaneous
demand from soldiers all over the country, determined
upon a convention of citizen soldiers and sailors in
order to show that those to whom war was not a trade,
who had left their peaceful and gainful avocations at the
nation 's call, and who therefore would be the last to re-
enter into war for revengeful purposes, were in accord
with the policy of securing by legislation the results for
which they had made such great sacrifices.
This convention was held at Pittsburgh on Septem
ber 25-26. In contradistinction to the soldiers present at
the Cleveland convention, who were almost all officers,
Pittsburgh was overrun with a vast number of private
soldiers (estimated at 25,000). A private soldier, L. Ed
win Dudley, who had resigned a Government position at
Washington, upon leave of absence being refused him,
in order to attend the convention, was chosen as tem
porary chairman. Delegates were present from every
part of the Union.
PRESIDENT VS. CONGRESS 457
Gen. Jacob D. Cox [0.] was made permanent chair
man. In taking the chair he said :
It is unpleasant to recognize the truth that it is in the
minds of some to exalt the executive department of the Govern
ment into a despotic power and to abase the representative
portion of our Government into the mere tools of despotism.
Learning that this is the case, we now, as heretofore, know
our duty, and, knowing, dare maintain it. The citizen soldiery
of the United States recognize the Congress of the United States
as the representative government of the people. We know and
all traitors know that the will of the people has heen expressed
in the complexion and character of the existing Congress. We
have expressed our faith that the proposition which has been
made by Congress for the settlement of all difficulties in the
country [the Fourteenth Amendment] is not only a wise policy,
but one so truly magnanimous that the whole world stood in
wonder that a people could, under such circumstances, be so
magnanimous to those whom they had conquered. And when
we say we are ready to stand by the decision of Congress we
only say as soldiers that we follow the same flag and the same
principles which we have followed during the war.
Says Mr. Elaine :
The resolutions, read by Gen. Benjamin F. Butler
[Mass.], were explicit and unqualified in their declara
tions and were indorsed with absolute unanimity.
They declared that "the action of the present Congress in
passing the pending constitutional amendment is wise, prudent,
and just. That amendment clearly defines American citizenship
and guarantees all his rights to every citizen. It places on a
just and equal basis the right of representation, making the
vote of a man in one State equally potent with the vote of
another man in any State. It righteously excludes from places
of honor and trust the chief conspirators and guiltiest rebels,
whose perjured crimes have drenched the land in blood. It
puts into the very frame of our Government the inviolability
of our national obligations, and nullifies forever the obligations
contracted in support of the rebellion."
The resolutions further declared it to be "unfortunate for
the country that the propositions contained in the Fourteenth
Amendment have not been received with the spirit of concilia-
458 GREAT AMERICAN DEBATES
tion, clemency and fraternal feeling in which they were offered,
as they are the mildest terms ever granted to subdued rebels."
The members of the convention, says Mr. Elaine, were
in a tempest of anger against the President.
They declared "that his attempt to fasten his scheme of
reconstruction upon the country is as dangerous as it is un
wise ; that his acts in sustaining it have retarded the restoration
of peace and unity; that they have converted conquered rebels
into impudent claimants to rights which they have forfeited
and to places which they have desecrated. If the President's
scheme were consummated it would render the sacrifice of the
nation useless, the loss of our buried comrades vain, and the
war in which we have so gloriously triumphed a failure, as it
was declared to be by President Johnson's present associates in
the Democratic National Convention of 1864. ' '
Many other propositions of an equally decisive char
acter were announced by the convention, and General
John Cochrane declared that "a more complete, just
and righteous platform for a whole people to occupy
has never before been presented to the National sense. "
The speeches of the convention were in the same
tenor. Their burden was " support the Fourteenth
Amendment." From this assembly, says Mr. Elaine,
went forth the most attractive and eloquent speakers of
the congressional campaign which was now inaugurated.
Even the candidates were less influential. The conven
tion did more to popularize the Fourteenth Amendment
than any other instrumentality of the year.
THE NEW ORLEANS MASSACRE
The murders of negroes and Union white men re
ferred to in the resolutions of the Eadical conventions
had taken place in various parts of the South since the
close of the war, chiefly as a result of private cruelty or
revenge. However, on July 30, 1866, a riot occurred in
New Orleans, La., in which about forty white loyalists
were killed outright and 150 wounded ; about fifty so se
verely that they afterward died. The occasion was the
PRESIDENT VS. CONGRESS 459
reassembling of the constitutional convention authorized
by the free constitution of the State, adopted in 1864.
Fearing that the convention would adopt negro suffrage
opponents of that measure rose in a mob against the
assembly and began to shoot down the delegates. In an
investigation conducted by the next Congress it was
found that the mayor of the city and other municipal
authorities had purposely misled the military com
mander of the district so that no troops were available
to quell the riot, and that the police aided the rioters.
Gen. Philip H. Sheridan, commander of the department,
said of the killing that it was ' ' so unnecessary and atro
cious as to compel me to say it was murder. " An inves
tigation into the affair was also conducted by the War
Department, which found that " there was among the
class of violents known to exist in the State, and among
the members of the ex-Confederate associations, a pre
concerted plan and purpose of attack upon the conven
tion provided any possible pretext therefor could be
found. "
None of the rioters were arrested by the municipal
authorities, though they were well known to the police.
Some of them were civil officials, who not alone escaped
punishment but were continued in their places. Instead,
the judge of the criminal court in New Orleans instructed
the grand jury to indict for murder the members and
spectators of the convention, which he declared unlawful.
President Johnson was condemned by the congres
sional investigating committee for telegraphing on the
eve of the convention orders to the military of New
Orleans the effect of which, if they had been enforced
(as they were not because of the riot intervening), would
have been to cause the Federal troops to cooperate with
the opponents of the convention in suppressing the meet
ing.
The "New Orleans Massacre," as it was called by the
Radical orators, was referred to with great effect in the
attack upon the President and his policy, not only during
the congressional campaign but throughout the ensuing
session of Congress.
460 GREAT AMERICAN DEBATES
"SWINGING BOUND THE CIRCLE"
On August 28, 1866, the President left Washington
in company with Gideon Welles, Secretary of the Treas
ury; Alexander W. Eandall, Postmaster-General; Gen.
Ulysses S. Grant, Admiral David Farragut, and other
army and navy officers, as well as a host of newspaper
reporters, to make a speaking tour on the way to attend
the inauguration on September 6 of a monument to
Stephen A. Douglas at Chicago. The route was through
Philadelphia and New York (where the party was joined
by William H. Seward, Secretary of State), and thence
westward through the principal cities of New York,
northern Ohio, and Indiana to Chicago, and thence back
to Washington by way of St. Louis.
In several cities through which he passed the Pres
ident delivered disputatious speeches on the subject of
"my policy, " which were frequently interrupted (in par
ticular in Cleveland) by remarks, often insolent, from
persons in the audience, whereupon he would indulge
in repartee in the manner of a stump orator. The facts
that he was using an invitation to pay solemn respect to
a dead statesman as an opportunity to advance his own
interests in a manner entirely foreign to the occasion,
and that he did this in a fashion most unworthy of his
high position even though he were making a speaking
tour pure and simple, were severely commented upon
not only by the Opposition but even by editors and pub
lic men who were non-partisan, or, indeed, had hitherto
been friendly to the Administration.
The journey became aptly known as "swinging
round the circle, " there being an insinuation in the
phrase that the President was preparing the country for
his return to the Democratic party. Newspaper humor
ists played upon this and kindred themes. David E.
Locke ("Petroleum V. Nasby"), who signed his letters
to the press from "Confedrit X Eoads" as a dyed-in-the-
wool "butternut" (a less opprobious synonym for "cop
perhead"), wrote in pretended support of the President
that he had undertaken the tour in order "to arouse the
PRESIDENT VS. CONGRESS 461
I
people to the danger of concentrating power in the hands
of Congress instead of diffusing it through one man."
Says Mr. Elaine: "With whatever strength or prestige
the President left Washington, he certainly returned
to the capital personally discredited and practically
ruined. ' '
The following extracts from his speeches on this tour
were cited in the Articles of Impeachment subsequently
brought against him by Congress.
In Cleveland, on September 3, he spoke as follows : 1
WHO Is TRAITOR — THE PRESIDENT OR CONGRESS?
PRESIDENT JOHNSON
I will tell you what I did do. I called upon your Congress
that is trying to break up the Government. . . .
In conclusion, beside that, Congress has taken much pains
to poison their constituents against me. But what had Congress
done? Have they done anything to restore the union of these
States? No; on the contrary, they have done everything to
prevent it; and because I stand now where I did when the
rebellion commenced I have been denounced as a traitor. Who
has run greater risks or made greater sacrifices than myself?
But Congress, factious and domineering, has undertaken to
poison the minds of the American people.
In St. Louis, on September 8, replying to an interrup
tion: "How about New Orleans?" he said:
THE NEW ORLEANS RIOT — WHO CAUSED IT?
PRESIDENT JOHNSON
If you will take up the riot at New Orleans and trace it
back to its source you will find out who was responsible for the
blood that was shed there. You will find that the riot at New
Orleans was substantially planned in the radical Congress. If
you will take up the proceedings in their caucuses you will
understand that they there knew that a convention was to be
1 As illiteracy was charged against the President, the language of these
speeches is given as reported, though somewhat abridged.
462 GREAT AMERICAN DEBATES
called which was extinct by its power having expired; that it
was said that the intention was that a new government was to
be organized, and on the organization of that government the
intention was to enfranchise the colored population who had
just been emancipated, and at the same time disfranchise white
men. When you design to talk about New Orleans you ought
to understand what you are talking about. When you read the
speeches that were made before that convention sat, you will
find them incendiary in their character, exciting that portion
of the population, the black population, to arm themselves and
prepare for the shedding of blood. You will also find that that
convention did assemble in violation of law, and the intention of
that convention was to supersede the reorganized authorities in
the State government of Louisiana, which had been recognized
by the Government of the United States; and I say that every
man engaged in that convention was a traitor to the Constitution
of the United States, and hence you find that another rebellion
was commenced having its origin in the radical Congress.
Continuing, he said:
"SOME NAMED HIM WITH ISCAKIOT"
PRESIDENT JOHNSON
When you talk about the causes and consequences that re
sulted from proceedings of that kind, perhaps, as I have been
introduced here, and you have provoked questions of this kind,
though it does not provoke me, I will tell you a few wholesome
things that have been done by this radical Congress in connection
with New Orleans and the extension of the elective franchise.
I know that I have been traduced and abused. I know it
has come in advance of me here, as elsewhere, that I have at
tempted to exercise an arbitrary power in resisting laws that
were intended to be forced upon the Government; that I had
exercised that power; that I had abandoned the party that
elected me, and that I was a traitor because I exercised the veto
power in attempting and did arrest for a time a bill that was
called a "Freedman's Bureau " bill. And I have been traduced,
I have been slandered, I have been maligned, I have been called
Judas Iscariot, and all that. Now, it is very easy to indulge
in epithets ; it is easy to call a man a Judas and cry out traitor,
but when he is called upon to give arguments and facts he is
very often found wanting. If I have played the Judas, who has
been my Christ that I have played the Judas with? Was it
PRESIDENT VS. CONGRESS 463
Thad. Stevens? Was it Wendell Phillips? Was it Charles
Sumner? These are the men that stop and compare themselves
with the Savior; and everybody that differs with them in
opinion, and to try and stay and arrest the diabolical and
nefarious policy, is to be denounced as a Judas.
He concluded with a threat to ' ' kick the Radicals out
of office/'
KICKING OUT THE RADICALS
PRESIDENT JOHNSON
Well, let me say to you, if you will stand by me in this action,
if you will stand by me in trying to give the people a fair
chance, soldiers and citizens, to participate in these offices, God
being willing, I will kick them out. I will kick them out just
as fast as I can.
Let me say to you, in concluding, that what I have said I
intended to say. I was not provoked into this, and I care not
for their menaces, the taunts, and the jeers. I care not for
threats. I do not intend to be bullied by my enemies nor over
awed by my friends. But, God willing, with your help, I will
veto their measures whenever any of them come to me.
CONGKESSIONAL ELECTIONS
The Republicans won overwhelmingly in the ensuing
elections to choose members of Congress and State legis
lators, who in a number of States were to select United
States Senators. They were even wholly or partially
successful in Northern States hitherto reckoned as
staunchly Democratic, such as New Jersey, Connecticut,
California, and Oregon. They also carried the border
States of Missouri and West Virginia. The other border
States were strongly Democratic, there being only one
Radical Republican elected out of five Representatives
in Maryland and one out of eight in Kentucky.
In the Southern States, none of which except Ten
nessee had yet been restored into the Union, the State
officers were elected by a heavy and almost solid Demo
cratic vote, showing that the section defeated in the war
would be almost unanimous in the attempt to regain by
464 GREAT AMERICAN DEBATES
the ballot as much as possible of what it had lost by the
sword.
The total result of the congressional elections was
143 Eepublican Representatives to 49 Democratic. Of
the Republicans there were but two supporters of the
Administration: Charles E. Phelps [Md.] and Thomas
E. Noell [Mo.], and Noell died during the session and
was succeeded by a Democrat.
This election meant that Congress would be able
easily to override any veto of the President and would
probably be strong enough to impeach him if, as was
feared might happen, he entered upon a course of action
regarded by the Republican leaders as unconstitutional.
During the congressional campaign a strong popular
demand was manifested for extending the suffrage to
negroes as a basis for reconstruction in the South, and
this in despite of the fact that to be constitutional the
extensions would have to apply throughout the Union,
in nearly all the States of which the negro was with gen
eral approval disfranchised.
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