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THE NATIONAL EDITION 



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signed, numbered and registered sets. 

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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^ 1 P 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. 
3 Boger 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- 

1 Now 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 w in 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. 
1 Now 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." 

1 Now 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 
tleman 1 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." 
il l 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 ? 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. ll l 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 w r ith 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 9 s 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 instanti 1 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 T