American Eloquence, Volume IV. (of 4) by Various

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Those that are here represented are the only governments existing within
the limits of the United States. Those that are not here represented are
not governments of the States, republican under the Constitution. And
if they be not, then they are military usurpations, inaugurated as the
permanent governments of the States, contrary to the supreme law of the
land, arrayed in arms against the Government of the United States;
and it is the duty, the first and highest duty, of the government to
suppress and expel them. Congress must either expel or recognize and
support them. If it do not guarantee them, it is bound to expel them;
and they who are not ready to suppress are bound to recognize them.

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

What jurisdiction does the duty of guaranteeing a republican government
confer under such circumstances upon Congress? What right does it give?
What laws may it pass? What objects may it accomplish? What conditions
may it insist upon, and what judgment may it exercise in determining
what it will do? The duty of guaranteeing carries with it the right
to pass all laws necessary and proper to guarantee. The duty of
guaranteeing means the duty to accomplish the result. It means that the
republican government shall exist. It means that every opposition to
republican government shall be put down. It means that every thing
inconsistent with the permanent continuance of republican government
shall be weeded out. It places in the hands of Congress to say what is
and what is not, with all the light of experience and all the lessons of
the past, inconsistent, in its judgment, with the permanent continuance
of republican government; and if, in its judgment, any form of policy
is radically and inherently inconsistent with the permanent and enduring
peace of the country, with the permanent supremacy of republican
government, and it have the manliness to say so, there is no power,
judicial or executive, in the United States that can even question
this judgment but the people; and they can do it only by sending
other Representatives here to undo our work. The very language of
the Constitution, and the necessary logic of the case, involve that
consequence. The denial of the right of secession means that all the
territory of the United States shall remain under the jurisdiction of
the Constitution. If there can be no State government which does not
recognize the Constitution, and which the authorities of the United
States do not recognize, then there are these alternatives, and these
only: the rebel States must be governed by Congress till they submit
and form a State government under the Constitution; or Congress must
recognize State governments which do not recognize either Congress
or the Constitution of the United States; or there must be an entire
absence of all government in the rebel States--and that is anarchy.
To recognize a government which does not recognize the Constitution is
absurd, for a government is not a constitution; and the recognition of
a State government means the acknowledgment of men as governors and
legislators and judges, actually invested with power to make laws, to
judge of crimes, to convict the citizens of other States, to demand the
surrender of fugitives from justice, to arm and command the militia, to
require the United States to repress all opposition to its authority,
and to protect it against invasion--against our own armies; whose
Senators and Representatives are entitled to seats in Congress, and
whose electoral votes must be counted in the election of the President
of a government which they disown and defy. To accept the alternative
of anarchy as the constitutional condition of a State is to assert the
failure of the Constitution and the end of republican government. Until,
therefore, Congress recognize a State government, organized under
its auspices, there is no government in the rebel States except the
authority of Congress. * * * When military opposition shall have been
suppressed, not merely paralyzed, driven into a corner, pushed back, but
gone, the horrid vision of civil war vanished from the South, 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 Constitution of the United
States, prohibiting slavery everywhere within its limits. That, sir,
goes to the root of the matter, and should consecrate the nation's
triumph. But there are thirty-four States; three fourths of them would
be twenty-six. I believe there are twenty-five States represented in
this Congress; so that we on that basis can-not change the Constitution.
It is, therefore,a condition precedent in that view of the case that
more States shall have governments organized within them. If it be
assumed that the basis of calculation shall be three fourths of the
States now represented in Congress, I agree to that construction of the
Constitution. * * *

But, under any circumstances, even upon that basis it will be difficult
to find three fourths of the States, with New Jersey, or Kentucky, or
Maryland, or Delaware, or other States that might be mentioned,
opposed to it, under existing auspices, to adopt such a clause of the
Constitution after we shall have agreed to it. If adopted it still
leaves all laws necessary to the ascertainment of the will of the
people, and all restrictions on the return to power of the leaders of
the rebellion, wholly unprovided for. The amendment of the Constitution
meets my hearty approval, but it is not a remedy for the evils we must
deal with.

The next plan is that inaugurated by the President of the United States,
in the proclamation of the 8th December (1863), called the amnesty
proclamation. That proposes no guardianship of the United States over
the reorganization of the governments, no law to prescribe who shall
vote, no civil functionaries to see that the law is faithfully executed,
no supervising authority to control and judge of the election. But if
in any manner by the toleration of martial law, lately proclaimed the
fundamental law, under the dictation of any military authority, or
under the prescription of a provost marshal, something in the form of a
government shall be presented, represented to rest on the votes of one
tenth of the population, the President will recognize that, provided
it does not contravene the proclamation of freedom and the laws of
Congress; and to secure that an oath is exacted. There is no guaranty
of law to watch over the organization of that government. It may be
recognized by the military power, and not recognized by the civil
power, so that it would have a doubtful existence, half civil and half
military, neither a temporary government by law of Congress nor a
State government, something as unknown to the Constitution as the rebel
government that refuses to recognize it. The only prescription is that
it shall not contravene the provisions of the proclamation. Sir, if that
proclamation be valid, then we are relieved from all trouble on that
score. But if that proclamation be not valid, then the oath to support
it is without legal sanction, for the President can ask no man to
bind himself by an oath to support an unfounded proclamation or an
unconstitutional law even for a moment, still less after it shall have
been declared void by the Supreme Court of the United States. * * *

By the bill we propose to preclude the judicial question by the solution
of a political question. How so? By the paramount power of Congress to
reorganize governments in those States, to impose such conditions as it
thinks necessary to secure the permanence of republican government, to
refuse to recognize any governments there which do not prohibit slavery
forever. Ay, gentlemen, take the responsibility to say in the face of
those who clamor for the speedy recognition of governments tolerating
slavery, that the safety of the people of the United States is the
supreme law; that their will is the supreme rule of law, and that we
are authorized to pronounce their will on this subject. Take the
responsibility to say that we will revise the judgments of our
ancestors; that we have experience written in blood which they had
not; that we find now what they darkly doubted, that slavery is really,
radically inconsistent with the permanence of republican governments;
and that being charged by the supreme law of the land on our conscience
and judgment to guarantee, that is to continue, maintain and enforce,
if it exist, to institute and restore, when overthrown, republican
government throughout the broad limits of the republic, we will weed
out every element of their policy which we think incompatible with its
permanence and endurance. The purpose of the bill is to preclude
the judicial question of the validity and effect of the President's
proclamation by the decision of the political authority in reorganizing
the State governments. It makes the rule of decision the provisions
of the State constitution, which, when recognized by Congress, can be
questioned in no court; and it adds to the authority of the proclamation
the sanction of Congress. If gentlemen say that the Constitution does
not bear that construction, we will go before the people of the United
States on that question, and by their judgment we will abide.

GEORGE H. PENDLETON,

OF OHIO. (BORN 1825, DIED 1889.)

ON RECONSTRUCTION; THE DEMOCRATIC THEORY;

HOUSE OF REPRESENTATIVES, MAY 4, 1864.

The gentleman [Mr. H. W. Davis] maintains two propositions, which lie
at the very basis of his views on this subject. He has explained them to
the House, and enforced them on other occasions. He maintains that, by
reason of their secession, the seceded States and their citizens "have
not ceased to be citizens and States of the United States, though
incapable of exercising political privileges under the Constitution, but
that Congress is charged with a high political power by the Constitution
to guarantee republican government in the States, and that this is
the proper time and the proper mode of exercising it." This act of
revolution on the part of the seceding States has evoked the most
extraordinary theories upon the relations of the States to the Federal
Government. This theory of the gentleman is one of them.

The ratification of the Constitution by Virginia established the
relation between herself and the Federal Government; it created the
link between her and all the States; it announced her assumption of
the duties, her title to the rights, of the confederating States; it
proclaimed her interest in, her power over, her obedience to, the
common agent of all the States. If Virginia had never ordained that
ratification, she would have been an independent State; the Constitution
would have been as perfect and the union between the ratifying States
would have been as complete as they now are. Virginia repeals that
ordinance, annuls that bond of union, breaks that link of confederation.
She repeals but a single law, repeals it by the action of a sovereign
convention, leaves her constitution, her laws, her political and social
polity untouched. And the gentleman from Maryland tells us that the
effect of this repeal is not to destroy the vigor of that law, but to
subvert the State government, and to render the citizens "incapable of
exercising political privileges"; that the Union remains, but that one
party to it has thereby lost its corporate existence, and the other has
advanced to the control and government of it.

Sir, this cannot be. Gentlemen must not palter in a double sense. These
acts of secession are either valid or invalid. If they are valid, they
separated the State from the Union. If they are invalid, they are void;
they have no effect; the State officers who act upon them are rebels
to the Federal Government; the States are not destroyed; their
constitutions are not abrogated; their officers are committing illegal
acts, for which they are liable to punishment; the States have never
left the Union, but, as soon as their officers shall perform their
duties or other officers shall assume their places, will again perform
the duties imposed, and enjoy the privileges conferred, by the
Federal compact, and this not by virtue of a new ratification of the
Constitution, nor a new admission by the Federal Government, but by
virtue of the original ratification, and the constant, uninterrupted
maintenance of position in the Federal Union since that date.

Acts of secession are not invalid to destroy the Union, and valid to
destroy the State governments and the political privileges of their
citizens. We have heard much of the twofold relations which citizens of
the seceded States may hold to the Federal Government--that they may be
at once belligerents and rebellious citizens. I believe there are some
judicial decisions to that effect. Sir, it is impossible. The Federal
Government may possibly have the right to elect in which relation
it will deal with them; it cannot deal at one and the same time in
inconsistent relations. Belligerents, being captured, are entitled to
be treated as prisoners of war; rebellious citizens are liable to be
hanged. The private property of belligerents, according to the rules
of modern war, shall not be taken without compensation; the property
of rebellious citizens is liable to confiscation. Belligerents are
not amenable to the local criminal law, nor to the jurisdiction of the
courts which administer it; rebellious citizens are, and the officers
are bound to enforce the law and exact the penalty of its infraction.
The seceded States are either in the Union or out of it. If in the
Union, their constitutions are untouched, their State governments are
maintained, their citizens are entitled to all political rights, except
so far as they may be deprived of them by the criminal law which they
have infracted.

This seems incomprehensible to the gentleman from Maryland. In his view,
the whole State government centres in the men who administer it, so
that, when they administer it unwisely, or put it in antagonism to
the Federal Government, the State government is dissolved, the State
constitution is abrogated, and the State is left, in fact and in form,
_de jure_ and _de facto_, in anarchy, except so far as the Federal
Government may rightfully intervene. * * * I submit that these gentlemen
do not see with their usual clearness of vision. If, by a plague or
other visitation of God, every officer of a State government should at
the same moment die, so that not a single person clothed with official
power should remain, would the State government be destroyed? Not
at all. For the moment it would not be administered; but as soon as
officers were elected, and assumed their respective duties, it would be
instantly in full force and vigor.

If these States are out of the Union, their State governments are still
in force, unless otherwise changed; their citizens are to the Federal
Government as foreigners, and it has in relation to them the same
rights, and none other, as it had in relation to British subjects in
the war of 1812, or to the Mexicans in 1846. Whatever may be the true
relation of the seceding States, the Federal Government derives no
power in relation to them or their citizens from the provision of the
Constitution now under consideration, but, in the one case, derives all
its power from the duty of enforcing the "supreme law of the land," and
in the other, from the power "to declare war."

The second proposition of the gentleman from Maryland is this--I use
his language: "That clause vests in the Congress of the United States
a plenary, supreme, unlimited political jurisdiction, paramount over
courts, subject only to the judgment of the people of the United States,
embracing within its scope every legislative measure necessary and
proper to make it effectual; and what is necessary and proper the
Constitution refers in the first place to our judgment, subject to no
revision but that of the people."

The gentleman states his case too strongly. The duty imposed on Congress
is doubtless important, but Congress has no right to use a means of
performing it forbidden by the Constitution, no matter how necessary or
proper it might be thought to be. But, sir, 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 United States." The rights of the people 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 doctrine be true, Congress may decide that this
exclusion is anti-republican, and by force of arms abrogate that
constitution and set up another, permitting negroes to vote. From that
decision of Congress there is no appeal to the people of Ohio, but
only to the people of New York and Massachusetts 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 corners of the
confederation. The Constitution recognized them, maintained them,
provided for their perpetuation. Our fathers thought them the safeguard
of our liberties. They have proved so. They have reconciled liberty
with empire; they have reconciled 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, and the avowed doctrine of its
supporters, sweeps them all instantly away. It substitutes despotism 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.

THADDEUS STEVENS,

OF PENNSYLVANIA. (BORN 1792, DIED 1868.)

ON RECONSTRUCTION; THE RADICAL REPUBLICAN THEORY;

HOUSE OF REPRESENTATIVES, DECEMBER 18, 1865.

A candid examination of the power and proper principles of
reconstruction can be offensive to no one, and may possibly be
profitable by exciting inquiry. One of the suggestions of the message
which we are now considering has special reference to this. Perhaps
it is the principle most interesting to the people at this time. The
President assumes, what no one doubts, that the late rebel States have
lost their constitutional relations to the Union, and are incapable of
representation in Congress, except by permission of the Government. It
matters but little, with this admission, whether you call them States
out of the Union, and now conquered territories, or assert that because
the Constitution forbids them to do what they did do, that they are
therefore only dead as to all national and political action, and will
remain so until the Government shall breathe into them the breath of
life anew and permit them to occupy their former position. In other
words, that they are not out of the Union, but are only dead carcasses
lying within the Union. In either case, it is very plain that it
requires the action of Congress to enable them to form a State
government and send representatives to Congress. Nobody, I believe,
pretends that with their old constitutions and frames of government they
can be permitted to claim their old rights under the Constitution. They
have torn their constitutional States into atoms, and built on their
foundations fabrics of a totally different character. Dead men cannot
raise themselves. Dead States cannot restore their own existence "as it
was." Whose especial duty is it to do it? In whom does the Constitution
place the power? Not in the judicial branch of Government, for it only
adjudicates and does not prescribe laws. Not in the Executive, for he
only executes and cannot make laws. Not in the Commander-in-Chief of
the armies, for he can only hold them under military rule until the
sovereign legislative power of the conqueror shall give them law.

There is fortunately no difficulty in solving the question. There are
two provisions in the Constitution, under one of which the case must
fall. The fourth article says:

"New States may be admitted by the Congress into this Union."

In my judgment this is the controlling provision in this case.
Unless the law of nations is a dead letter, the late war between two
acknowledged belligerents severed their original compacts, and broke all
the ties that bound them together. The future condition of the conquered
power depends on the will of the conqueror. They must come in as new
States or remain as conquered provinces. Congress--the Senate and House
of Representatives, with the concurrence of the President--is the
only power that can act in the matter. But suppose, 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."

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 the
political Government--the concurrent action of both branches of Congress
and the Executive. The separate action of each amounts to nothing,
either in admitting new States or guaranteeing republican governments
to lapsed or outlawed States. Whence springs the preposterous idea that
either the President, or the Senate, or the House of Representatives,
acting separately, can determine the right of States to send members or
Senators to the Congress of the Union?

To prove that they are and for four years have been out of the Union for
all legal purposes, and, being now conquered, subject to the absolute
disposal of Congress, I will suggest a few ideas and adduce a few
authorities. If the so-called "confederate States of America" were an
independent belligerent, and were so acknowledged by the United States
and by Europe, or had assumed and maintained an attitude which entitled
them to be considered and treated as a belligerent, then, during such
time, they were precisely in the condition of a foreign nation with whom
we were at war; nor need their independence as a nation be acknowledged
by us to produce that effect.

After such clear and repeated decisions it is something worse than
ridiculous to hear men of respectable standing attempting to nullify the
law of nations, and declare the Supreme Court of the United States in
error, because, as the Constitution forbids it, the States could not go
out of the Union in fact. A respectable gentleman was lately reciting
this argument, when he suddenly stopped and said, "Did you hear of that
atrocious murder committed in our town? A rebel deliberately murdered
a Government official." The person addressed said, "I think you are
mistaken." "How so? I saw it myself." "You are wrong, no murder was or
could be committed, for the law forbids it."

The theory that the rebel States, for four years a separate power and
without representation in Congress, were all the time here in the Union,
is a good deal less ingenious and respectable than the metaphysics of
Berkeley, which proved that neither the world nor any human being was in
existence. If this theory were simply ridiculous it could be forgiven;
but its effect is deeply injurious to the stability of the nation. I
cannot doubt that the late confederate States are out of the Union
to all intents and purposes for which the conqueror may choose so to
consider them.

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