suspended functions of their State government, have reorganized a State constitution, have elected State officers, and have put their civil government into full execution and operation, and that fact comes before us attested and undisputed, I inquire whether, under the provisions of this law and the proclamation of the President, it is necessary that there should be an act of Congress passed in order to establish the fact that these people have reorganized and reassumed their ancient loyal functions? I am as much opposed as any other Senator can be to the admission of Senators from the State of South Carolina, if such a thing could occur, or to the electoral vote of the State of South Carolina being counted in the Electoral College; but, sir, if the fact appeared that that State, contrary to all its predispositions toward rebellion, had resumed its loyal functions under the ancient Union, and that there were a large body of loyal people there, sufficient for the purpose of performing all their duties under the State government and under the Government of the United States, even South Carolina, polluted and covered over as she is and has been with treason, might yet by possibility be permitted to resume her position upon this floor and have her electoral vote also counted in the joint convention of both Houses. Why, sir, I thought that this whole war, the expenditure of thousands of millions of dollars and of oceans of blood, was for the very purpose of restoring this Union and bringing back these shooting stars to their ancient orbits.

I differ with the Senator from Michigan, who would make the return of these States to the Union attendant with the utmost difficulty. Whenever I was satisfied that there was a true, genuine, loyal feeling among the inhabitants of any of these States to repudiate their heresies and return to their allegiance, and that there was a sufficient body of them to justify the proceeding, and to carry on all the essential, necessary operations of State governments, and to perform their duties within the limits of the Union, I should be disposed to extend the hand of encouragement to the loyal people, always saving and reserving not only terms of indignation for the leaders, but the privilege and firm determination of punishing in the most condign manner the guilty authors and leaders and instigators of the rebellion. I do not believe that there is any necessity for any such act of Congress as has been referred to. do not believe that it is, at this time, under the existing state of things, prudent, advisable, or proper to throw these impediments in the way, to make the return of these erring States dependent solely upon the wish and will of Congress.

Inducements have been held out to them by the Executive of the United States. I know that that course of conduct on the part of the Executive has been criticised; yet, at the same time, these people, who have been like drowning men struggling in the midst of a storm, contending against their neighbors and their efforts to keep them in rebellion, have seized hold of this offer or inducement held out to them by the Executive of this nation, and have proceeded in the common, legitimate, lawful, and ordinary mode, in the mode in accordance with their ancient traditions, in accordance generally with their constitutions and the laws they had enacted in times past, to perform all the duties which good, loyal, and true citizens should perform, to manifest their devotion to the ancient Union, and to return to the ancient ark. Several of them have attempted this thing. Tennessee has made some effort toward it. Arkansas has made an effort toward it. I, however, having some familiarity with the case of Louisiana, saw fit to select that in my motion of amendment yesterday from the operation of this joint resolution, considering it, from the knowledge I had of the situation of these several States, as the strongest case that could be brought to the consideration of the Senate. It may not be so, but I so regard it.

I understood the Senator from Illinois to-day to take exception to the course pursued by the people of Louisiana. He wished to know if it were possible that some eight thousand votes cast in an election for the purpose of returning again to their ancient allegiance could be sufficient where the State had been in the habit of casting some fifty thousand votes in other elections. I do not understand the facts exactly as the Senator from Illinois understands them. I will read from a

paper furnished by a gentleman who is familiar with these facts, and who has had something to do in attempting to set this new State government in operation. He states, in regard to the State election:

"It was fixed for the 22d day of February. Three candidates were presented, and the canvass was general and spirited, each party sustaining its candidates by public meetings, precisely in the same manner as in a State unaffected by the revolution.

"Eleven thousand four hundred and fourteen votes were

polled at this election.

"The average vote for ten years previous to the rebellion in these parishes was fifteen to sixteen thousand."

Surely if the average vote in the parishes that voted at this State election in 1864 for the period of ten years past did not exceed fifteen or sixteen thousand, we may say that a full vote was cast by the people of these parishes in February, 1864, when they casteleven thousand four hundred and fourteen votes, taking into consideration the wasting effect of war upon that people, and the fact that a large number of them had actually gone into the rebel army.

"The highest vote ever given [in these parishes] was in 1860, when the subject of the rebellion was considered, and the people were represented by four presidential candidates. The vote in that year was twenty-one thousand."

So that the votes cast in the State election of 1864 in these parishes amounted to more than one half the whole number of votes cast in the presidential election immediately preceding when there were four candidates running, and when the question of rebellion was being considered, and when it is fair to presume that every voter who could be brought to the polls was brought and his ticket deposited.

I desire now to give the statistics of the vote of the State generally for the purpose of putting the facts right before the Senate:

"The highest average vote of the State of Louisiana in ten years past was thirty-four thousand.

"The highest vote ever given was about fifty-one thousand.

"In ten years past the vote is even as low sometimes as twenty-two thousand."

"The ordinary vote of the city of New Orleans was six

or seven thousand previous to the revolution.

"The highest vote ever given in the city was ten thousand.

"In these elections, therefore, the vote actually polled was more than one third of the average vote for ten years past."

I was anxious to save the State of Louisiana from the effect of this joint resolution. I feel as anxious to save the State of Tennessee from the effect of the resolution, because I cannot conceal the fact that the Vice President-elect of the United States is a citizen of that State. If that State be not a State in the Union, then he is an alien, and I do not see clearly how an alien can take his seat to preside over this body as the Vice President of the United States. Still, I did not see fit to start that question or to discuss it, because I had not fully looked into it and considered it, so as to justify me in attempting to detain the Senate in any remarks which I might make on the subject.

There was another view that I entertained of this case, and that was a motive which induced me to confine my amendment to the State of Louisiana. It was to avoid a committal on the subject, and to save the Senate from declaring its opinion beforehand with respect to the eligibility of the Senators chosen by that State to occupy seats upon this floor. The Senator from Illinois differs with me. He thinks that by the passage of the resolution that question will be avoided, that we shall not be committed upon it. I do not think so. I do not say that that is a sufficient reason to regulate and rule the transactions of this body; and yet I think we ought not in advance to commit ourselves on this subject. Why shall we commit ourselves on the question? If we pass this resolution declaring that the State of Louisiana was in such a state of rebellion during the year 1864 that no legal election could be held there, and even as late as the 8th of November of that year, then we declare that the Legislature of that State, elected in February of the same year, was illegally elected. Then if we refuse by this joint resolution to allow the electoral vote to be counted in the Electoral College on Wednesday next, on the ground that this Legislature was illegally elected, we preclude the question in relation to the election of these Senators, because they were elected by the same Legislature, in pur

suance of a law enacted by themselves, under the power conferred upon them by the Constitution to enact a law providing for the election of electors for President and Vice President of the United States. So far from avoiding a decision on this question, we, by our vote, if we pass this joint resolution, prejudge and predetermine the question in relation to the admission of the Senators from that State upon this floor, as well as the admission of the members elected to the House of Representatives.

I wish to avoid settling that question. It can make no difference as to the result. The choice of the people so clearly manifested during the last election will be acknowledged, and ratified, and carried out whether the votes of these States are cast in the Electoral College or not. Ishould much rather prefer leaving this question to be settled and determined, if it should arise, in the Electoral College, having faith in the good sense and honesty of purpose of the representatives of the people in both Houses, than to undertake to venture upon a doubtful power, claiming that the Congress, and the Congress alone, have the power to determine this question, and at the same time settle in advance other questions which we shall be called upon to settle hereafter, and which Senators on this floor declare it is their wish to avoid.

I will not detain the Senate by any further remarks.

Mr. POMEROY. I am not opposed to the object of this joint resolution, but rather to the form in which it is presented. I do not suppose that States that are not represented in either House of Congress should have a representation in the Electoral College. There seems to be an impropriety and an inconsistency in admitting their votes and counting them; but this resolution as it is presented to us goes on to state certain things about some of these States which are so far from being true that they become almost offensive. In the preamble of this resolution, it is said, of Arkansas, for instance, among other States, "the inhabitants and local authorities have continued to be in armed rebellion for three years, and were so during the last election on the 8th day of November."

Mr. TRUMBULL. If the Senator from Kansas will allow me, those words to which he refers have been stricken out. The amendment reported by the committee, striking out all after the words "United States" in the preamble, and substituting other words in lieu of them, has been adopted. Mr. POMEROY. Let me inquire if the words substituted in lieu of them make any reference to Arkansas?

Mr. TRUMBULL. Arkansas is left in in the first part of the preamble, to which, I presume, the Senator from Kansas has no objection. It now reads, whereas the inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Arkansas, and others, rebelled against the Government of the United States. The Senator does not deny that.

Mr. POMEROY. No, sir.

Mr. TRUMBULL. The rest of the preamble is stricken out, and a substitute has been adopted, the very object of which was to avoid this statement upon which the Senator is commenting.

Mr. POMEROY. I am very glad to learn that. I was not in my seat at the time that amendment was adopted. So far from the local authorities of the State of Arkansas having been in armed rebellion for three years, the authorities who did rebel have not been inside the State for a year. The rebel governor and legislature were driven out long ago, and have not been back, and cannot come back; some of them are dead, and never will come back. I thought, with such a state of facts as that, the statement in the preamble to this resolution, that the State had continued in rebellion up to the 8th of last November, was very inconsistent.

But I want to say again that the State of Arkansas has not voted at all in the presidential election. There are no votes from that State. Under the instructions and impressions that the members from Arkansas received here last session, they distinctly understood that States not represented in either branch of Congress would have no right to vote at the presidential election. They louned từ Atkins cat in reported and chey

LOOHENY COUNTY
Lew Library,

here from that State. They have been in suspense

awaiting the action of Congress, and while that state of things lasted, of course they held no election. So far as this resolution is concerned, it does not affect that State one way or the other;

there are no votes to count from that State.

Mr. COWAN. I have but a word or two to say on this question. I suppose as a general proposition all States have a right to be represented in this election of our President; but it appears that there is a difficulty in regard to some of the States named here. I am not sure that I know exactly the condition of this preamble. I understand that Arkansas is stricken out.

Mr. TRUMBULL. No, sir.

Mr. COWAN. Do they all remain as they

are here?

Mr. TRUMBULL. Yes, sir.

Mr. COWAN. And the question is on the motion of the Senator from New Jersey to strike out the word "Louisiana?"

Mr. TRUMBULL. Yes, sir.

Mr. COWAN. The preamble states the fact of the rebellion prevailing in these States, and the resolution declares that because of this fact stated in the preamble these States ought not to vote. That is the proposition from the committee. The amendment of the honorable Senator from Vermont, on the other hand, proposes to take the question in blank, and to declare that all the States which were proclaimed to be in a state of insurrection by the President ought not to vote until that insurrection has been declared by law to be suppressed. I am opposed to that amendment for divers reasons, and I think if we come to examine this question fairly we shall see that any action of ours intended to prevent Louisiana, for instance, and Arkansas from voting will be perhaps a breach of faith on the part of this Government, and a violation of that courtesy which is due from one department of it to another.

Sir, what are the facts? It is said that by the act of July 13, 1861, these States are cut out from the Union and debarred from all their privileges as States, political as well as others. I do not so read the act of July 13, 1861; nor do I conceive that that was its purpose, because in endeavoring to get at a fair construction of a law, it is always necessary to ascertain what was the purpose of the lawgiver. I apprehend, so far from its being the purpose of that law to put these States out of the Union, it was its intention to keep them in; that is it was intended to be a means to keep them in, although for the purpose of better achieving that end all commercial intercourse was cut off with them, but not political intercourse. They were not deprived of any of their rights as States, or from exercising any of the functions of States, provided they were able to do so in due time.

In pursuance of that act of Congress, the President, by his proclamation of August 16, 1861, declared Louisiana in a state of insurrection. By the proclamation of January 1, 1863, he exempted thirteen parishes of the State from the operation of the emancipation proclamation. Why? Because he says in that proclamation that the rebellion does not exist in those thirteen parishes; that that condition of things upon which he was allowed before that time to issue his proclamation did not exist in those parishes, and therefore he exempted them. We recognized the validity of that proclamation I believe; at least we have always treated it with that respect which is due to the act of another department of this Government when it is not grossly in violation of law or of the Constitution. By the proclamation, however, of the 8th of December, 1863, the President invited the people of Louisiana and of all the other States to resume their State rights and State functions, provided one tenth of them would agree to make the proper organization.

Now, as I understand the question here, it is simply this: in pursuance of that invitation extended by the President, and upon the footing of his proclamation declaring that those rights should be restored to them, and that they would be protected in the exercise of them, the people of Louisiana, in numbers sufficient to bring them within his terms, have organized a State government, and have it now actually in operation in the State of Louisiana. The question simply is, whether we will carry out that arrangement of the President in good faith, or whether we will violate it; and that is the question which

and that one monohich presente dis tinctly upon the propositions now before this body.

visidil wall

The President has invited a number of the people of these States which have been oppressed with the rebellion to go to work to reorganize their State governments, and has promised that he will extend, and this Government will extend, to them the protection guarantied by the Constitution; and he goes so far as to state that phrase of the Constitution in hæc verba. Will we stand by it? That is the question. Will we carry it out in good faith? If we are willing to do so, then there is no difficulty; and this one tenth of the people, or whatever the number may be, will become for this occasion the State of Louisiana, and the State of Arkansas, or any other State that sees fit to accept those conditions.

I may here remark, Mr. President, that no member of the Senate has yet undertaken to determine what number of people in a State shall be in rebellion in order to deprive the residue of the population of their rights. It is perfectly clear, I take it, the State being a corporation, that if the officers of the corporation refuse to do their duty, refuse to carry out the laws of the franchise, that that does not destroy the corporation. The corporation still remains, and a court would appoint trustees for the purpose of sustaining it, and for the purpose of carrying out the original intent with which it was created. If a portion of the people of a State, say ten thousand, were to drive away the State officers, or even if the State officers were to leave themselves, and for the time being suspend the functions of the State government, it is perfectly clear that that would not affect the rights of anybody else who had not been engaged in the original enterprise, however much they might have obeyed those who obtained the control of that government, and which exercised its authority over them. Then if ten thousand cannot do it, can twenty thousand, can thirty thousand, or can any number of people in a State, being rebellious and disloyal, deprive the loyal of the privileges granted to them under the Constitution? Those are questions which have not been settled. Those are questions upon which I have not heard an opinion. Can the majority of the people of a State destroy that State? They may derange and disorder its functions as such, but the moment they are suppressed and put down, and the usurpation removed, I would like to know whether the rights do not all remit themselves to the loyal people and those who have not been engaged in the enterprise?

I am not prepared to say that these rights have all come back to these people in Louisiana. I am not prepared by any means to determine that question, simply because the President has better means of ascertaining and determining it; and I think the question remains with him. It was his business as the agent, the Executive in fact of the United States Government, to put down this rebellion, to relieve the people from its oppression, and to restore them precisely to where they were when the rebellion found them. If that is done, in ten days after his proclamation, co instanti, the people resume their rights and functions; and in this case I understand they are not only in possession of the right, but are actually in the enjoyment of it, having a regularly-organized government with all the machinery necessary and proper to a government. Whether it is a government of so many people as will be enabled to maintain its supremacy over the whole State is a question, but it is a question which the Executive is to decide, because he is to sustain it there and make it able to be supreme within the limits of that State; and if I understand it that is just exactly why we are now giving him men and money, armies and navies. It is in order that he may bring about that desired result.

Mr. President, this involves a direct conflict between the legislative and executive bodies of this Government, and at this time I am of opinion that we cannot afford to enter into that conflict. We cannot afford to quarrel now, because the game would not pay for the candle. There is no practical value in the question that is raised here at any rate, because it will not alter the result of the presidential election a hair's breadth whether the electoral votes of Louisiana and Arkansas are counted or are not counted; and it is admitted to be a very grave question, and one upon which our people will be likely to divide. Then why should we raise it when it is not necessary? By not raising it we are left free to decide it when it

shall be a material question before us really. By raising it now upon an issue in which it is not wholly involved or wholly eliminated, we may be precluded hereafter from deciding it as we would desire to decide in such a case.

Therefore I think, for my own part, that it would have been better not to moot the question now, seeing that it can have no practical result, that the only possible consequence which can follow it is to divide and distract the various departments of this Government. I am unwilling to do that. I am willing at the present time to submit to anything that is not materially fatal. I am unwilling to raise any question which does not cross our path distinctly and in front of us while this war is pending, because I have my own notions about that it is war, and I would devote the whole energies of the nation to the successful conduct of that war, such a conduct of it as will enable us when it is brought to a successful conclusion to meet and adjust these questions in freedom, and without having impending over us the prospect that all the questions may be futile even if they are decided.

Mr. DAVIS. I believe the honorable Senator from Pennsylvania is about through, and with his permission I will occupy the floor for a few minutes. (Laughter.]

Mr. COWAN. Very well.
Mr. POMEROY. I desire-

Mr. COWAN. Oh, I hope the Senator from Kentucky will be allowed to make a speech. I shall be exceedingly sorry to see him prevented from enjoying that rare privilege. [Laughter.] Mr. POMEROY. I merely wish to make a single correction, if I may be allowed to do so. I want to say to the Senator from Illinois, the chairman of the Committee on the Judiciary, that the modification which has been made is not such as I understood him to say it was.

Mr. DAVIS. I do not yield the floor.

The VICEPRESIDENT. The Senator from Pennsylvania having yielded the floor to the Senator from Kentucky, the latter is entitled to it and will proceed.

Mr. DAVIS. It seems to me that a good many questions have been brought into this debate that are foreign to the point in issue. The presidential election has taken place; it remains now to count the vote. The question is how the vote is to be counted, and by whom the vote is to be counted. Preliminary to the count of the vote the Presiding Officer of the Senate has by the Constitution one office to perform, and what is it? Simply to open the votes. He is to perform no other function or act than to open the votes. When the votes are opened they are still to be counted, and who is to count them? The two Houses in convention are to count them. I have no doubt of that fact. And the question now under consideration is, have the two Houses of Congress in their legislative capacity the power to lay down certain rules by which this office of counting the vote may be performed? I think that they have. The clause in the Constitution read first by the Senator from New Hampshire and subsequently by other Senators, seems to me to confer full and plenary power in relation to the manner of counting the votes upon Congress; and Congress may declare by its legislative action certain rules to regulate the count of the presidential vote. This may be declared by an act of Congress or by a joint resolution passed previously for the purpose of convenience and to prevent disorder in the matter of counting the vote. The vote is to be counted in the presence of the two Houses, and would it not be competent for Congress to pass a law directing that as the certificates are opened by the Presiding Officer of the Senate they should be counted in the presence of the two Houses by the Secretary of the Senate and the Clerk of the House of Representatives jointly?

Mr. COWAN. Will the Senator allow me to ask him how the question can possibly be raised, until after we get into joint convention, whether the vote of a State shall be counted or not?

Mr. DAVIS. Just as any other question could be.

Mr. COWAN. I ask the Senator whether today Congress could pass a law that the vote of Pennsylvania should not be counted for any reason whatever?

Mr. DAVIS. It could if it pleased.

I

Mr. COWAN. Would the law be valid? Mr. DAVIS. It is only the vote that is counted that rules the presidential election. Whatever vote is counted in that election decides the question of the election to the Presidency. Who is to perform that office of counting the vote? maintain that it is to be done by the two Houses or in the presence of and under the supervision of the two Houses. The question now is whether the two Houses in their legislative capacity may lay down certain principles and regulations to prevent disorder and confusion in the act of counting the presidential votes? I think they may.

upon which I rely, is simply this: that Congress, for the convenience of the two bodies when they are in convention, and to prevent disorder and confusion at the time and place of counting the presidential votes, may previously by joint resolution declare certain principles upon which that count shall take place; that the resolution now under consideration simply does that, and therefore it comes legitimately and properly within the exercise of an incidental power of Congress to pass such laws as shall be necessary and proper to enable any expressly granted power in the instrument to be executed; and it is simply for that purpose that this resolution was offered, and it ought to pass.

Mr. POWELL. I am opposed to the amend ment of the honorable Senator from New Jersey to strike out "Louisiana" from the preamble, and I am also opposed to the substitute offered by the honorable Senator from Vermont to the resolution reported by the Committee on the Judiciary. The Senator from New Jersey yesterday, speaking of Louisiana, referred to a statement made by General Banks before the Judiciary Committee, in which he declared that the recent elecinterference from the military; and he read this clause in the statement of General Banks:

rescribed

I understand that that incidental power is simply proposed to be executed by this joint resolution in declaring certain principles and forms by which the count shall be made. This count is to be made in subordination to the Constitution. The Constitution declares that no man shall be eligible to the office of President unless he be a native-born citizen or a citizen of the United

" I desire to state in the most unqualified terms, that no effort whatever was made on the part of the military authorities to influence the citizens of the State either in the selection of candidates or in the election of officers, and that the direct influence of the Government of the United States was less in Louisiana than in the election probably of any other State of the Union."

I do not concur with General Banks in that statement, and the paper in which it is contained entirely overthrows the position taken by General Banks about the non-interference of the military authorities with the election in the State of Louisiana. General Banks in this paper tells you that the military authorities prescribed the quali

of the adoption of the Constitution, would it not be the duty of the two Houses, in counting the vote, to decline to count the vote of Louisiana that had been cast for a person for President in direct conflict with the spirit and the letter of the Constitution? It certainly would. The vote must be counted. How can it be counted until it is ascertained? The vote must be identified. It must be identified and ascertained in obedience to certain principles of the Constitution. One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of the United States

at the time the Constitution was adopted, or he must be a native-born citizen. Any vote cast in opposition to these plain and palpable provisions of the Constitution would be null and void; it would not be a vote for President in conformity to the Constitution, and therefore it would be void. To ascertain whether this vote is so cast or not, the two Houses of Congress, acting in the count of the vote, must decide whether any State has voted for a man under thirty-five years of age, or voted for an alien, against the provisions of the Constitution. They are to ascertain whether such votes have been given or not, before they can make a constitutional count of the votes.

Now, sir, as I understand the effect of this joint resolution, it is simply in a form to do that duty; that is, to ascertain whether the vote of certain States has been cast in conformity to the Constitution or not, and deciding that they have not been cast in conformity to the Constitution, to exclude them from the count. Some gentlemen here think the election in Louisiana was illegal for one class of reasons; I think it was illegal for another class of reasons; but as we both come to the same conclusion, it is immaterial upon what ground. The vote of that State is illeg. If I assume that it is illegal on one reason, and the Senator from Michigan [Mr. HOWARD] assumes that it is illegal upon another reason, I shall not dispute with him about the grounds that brought him to the conclusion to exclude the vote of Louisiana, but I will agree that he shall vote to exclude it upon his reason and I will vote to exclude it upon mine.

But, sir, the position I intended to state and

persons to vote who were disqualified from voting by the constitution and laws of the State of Louisiana. Under the constitution and laws of Louisianą persons in the Army and Navy are not legal voters. General Banks tells you that he modified that provision and allowed those persons to vote. He tells you further that the voters were required to take and did take every one of them the oath prescribed in the President's amnesty proclamation of December 8, 1863; and that the military authorities not only prescribed the qualifications of voters and the oath they should take, but fixed the rule for the eligibility of candidates to office. The amnesty proclamation of the President of December 8, 1863, it will be borne in mind requires each person to swear, not only that he will support all the laws of Congress passed on the subject of slavery, but all the proclamations issued by the President on that subject or that he may hereafter issue. That was a condition precedent to anybody being qualified as a voter at these elections in Louisiana. Although these facts all appear in this very statement of General Banks he comes here and tells you in another part of the statement that the interference of the Government in the elections in Louisiana was probably less than in any State of the Union! Did General Banks think for a moment that the members of this body were so grossly ignorant of public affairs as not to know that his statement was incorrect?

I ask you, sir, what greater interference there could be by the governmental authorities with the elections of a State than to prescribe qualifications of voters different from those prescribed in the constitution and laws of the State? Will General Banks tell me that in any State of the Union (except in some parts of Kentucky, where the military authorities did pretend to prescribe pre the qualification ualification of voters,) the authorities of this Government have the power to prescribe those qualifications? Has it been done in any of the adhering States save in some localities in the border States? Has the Government of the United States, by any or all of its departments, presumed to prescribe the qualifications of a voter in the State of New Jersey, or the State of New York, or the State of Ohio? No, sir. And yet General Banks tells you in this paper, which is relied upon by the Senator from New Jersey, that there was no governmental interference with the elections

any State of the Union. General Banks is greatly mistaken when he asserts that, and the very paper that he submits clearly and palpably stamps the

statement as erroneous.

I am opposed to admitting on this floor persons who are elected under the bayonet influence in any way whatever. I very well know that there was no free expression of the people of Louisiana in these elections. I know that they but obeyed the behests of the military, whatever commanders may say about it. General Banks tells you in this very statement that the military authorities there undertook to alter the constitution and laws of the State of Louisiana, and by military proclamations and orders to prescribe the qualifications of voters. Does any man tell me that an election held under such circumstances is a free election? No, sir. My friend from Ohio [Mr. WADE] says it is a farce, and but for its tragical results upon republican liberty it would be the greatest of farces. Its effect upon the liberty of the people, and upon every principle of self-government and every principle of republican government, is most tragic and disastrous. While I hold a seat here or have a voice anywhere, never with my consent shall any man take position in the councils of the nation who was elected by force of military power. The military must stand aloof from elections. Let them fight the armed ene

mies of the country, and let the people in their civil capacity go forward, and, uninfluenced by anything else than their own good judgments, vote as they please. Let the constituted authorities of the States prescribe, as they have a right to do, the qualifications of their voters and of their candidates for office. Whenever you depart from that principle, you stab in the most vital partour system of government, you overthrow the representative republican system, and you establish on its ruins a military despotism. I will not consent to it in any form or in any manner. So much for the elections in Louisiana.

I am opposed to the substitute offered by the distinguished Senator from Vermont to the resolution before the Senate. There is in his amendment a power given to the President of the United States which would enable him, if he had almost any strength, to reëlect himself. That amendment declares that the vote of any State which may have been declared to be in rebellion by the proclamation of the President made in pursuance of the act of July 13, 1861, shall not be counted. Now suppose-1 will merely suppose the case for illustration-that at the next presidential election Mr. Lincoln should be again a candidate; and suppose on a general survey of the political field he should find that it was necessary that the votes of New York and Ohio, for instance, should be excluded in order to secure his reëlection; and then suppose that in order to prevent their votes from being counted, which if counted would certainly defeat his election, he should manage to have a little row kicked up there, and then declare Ohio and New York in a state of rebellion: what would be the result? According to the amendment, their votes could not be counted, and that would insure his reëlection. It is a power which I will never by any vote of mine clothe the Executive with.

For the reasons which I have thus briefly stated, I cannot support either the amendment offered by the Senator from New Jersey, or that offered by the Senator from Vermont, but prefer to adhere to the resolution as it came from the Committee on the Judiciary.

I believe that the States in revolt are still States of the Union. I believe they are not out of the Union. I believe, furthermore, that when they choose to lay down their arms, and to elect officers of their State governments who acknowledge this Government, and to send members to the House of Representatives, and Senators to this Chamber, they have the right to do so, and I believe that they ought to be permitted to do so. While I say that, I know of course that each House is the judge of the qualifications of its members, and each House is to judge for itself whether the resistance to the Government in any State has sufficiently ceased to entitle it to representation here, and hence it is that each case must stand upon its own merits as it is presented here. For myself, I would vote to-morrow to receive Senators in this Hall from every State that is in people of those States, unawed by the military power, uninfluenced by any outward force, of their own good will, in the exercise of their own volition, had in good faith elected those men in the way prescribed by their constitution and laws. I think, whenever they manifest such disposition to return, a majority of the people will indicate that it is our duty to allow them to return. We, of course, and the other House, must be the judges of that matter to a great extent; we must sit in judgment upon each case; and we must decide whether or not a majority of the people of the State have ceased their resistance to the authority

of the United States, and whether or not the parties who present themselves were elected by the free suffrages of those people, unawed by the military or any other power.

Mr. COWAN. Allow me to ask the honorable Senator what he would do if a majority of the people of a State were to establish a monarchy?

Mr. POWELL. The Constitution guaranties a republican form of government.

Mr. COWAN. The remedy is to be found in the Constitution, to make war upon it and overturn it. But suppose they persist in it continuously, would the Senator hold them by conquest, or would he help the minority to preserve a republican form of government and control the monarchical majority?

Mr. POWELL. I think it is the duty of the United States, under the Constitution, to see that every State has a republican form of government, and I would always do my duty as I understood it. But, sir, the question which the Senator puts is not one that has anything to do with the subject which I am discussing. I am speaking of facts as they are. I say, believing that these States are States in the Union, that they are not out of the Union, whenever a majority of the people in either one of these States shall of their own free will cease to resist the authorities and Government of the United States, and shall elect of their own free will Senators and Representatives to Congress, I will only inquire as to the fact whether they have ceased their resistance and whether a majority of the people have determined to be loyal to the Constitution and Government of the United States; and that fact being established so as to leave no doubt upon my mind, I would then be ready to admit their Representatives as our equals here. That is my notion of the matter, and I believe the proposition presented from the Judiciary Committee is about the best we can pass under the circumstances. It does not preclude us hereafter from deciding upon any of the questions which have been incidentally alluded to in debate. I supported the resolution in committee and I shall vote for it here.

Mr. COWAN. The inquiry which I put to the Senator from Kentucky 1 think is one which reaches to the very marrow of this question. The people of a State are divided; about half of them desire to preserve their connection with the Union, to give it their allegiance; but the other portion, say a majority, refuse, and insist upon secession. We are bound by the Constitution to preservė the Union and to preserve the rights of the people under the Union; not merely the rights of a majority, but the rights of the people, of all the people, and of any number of the people however small. What are we to do? A minority of the people come forward and say, "If you aid us for a while we can preserve this State and keep her in the Union." "But no," according to the doctrine advanced here, "there must be a majority of you before we can recognize you as in the Union." Suppose they answer you, "The majority, by persisting in abandoning the Union, can destroy forever the State and deprive us of our rights which were guarantied to us as a portion of the people of the State."

the people, the masses of a country under circumstances like those which surround us, ever were in rebellion. The masses of the people even in the southern States never were in rebellion against the Government of the United States. They never could have been. The masses never go into rebellion unless they have wrongs to redress and injuries to avenge. That was not the case in this rebellion. It is a rebellion of leaders, and the masses are deluded away by falsehoods industriously circulated everywhere, and inflammatory speeches made. It is impossible for them to get back unless we create some such scaffolding in the rebel States as these governments of Arkansas and Louisiana will furnish. We ought to cultivate them. We ought not, I think, to stop and inquire whether they constitute a tenth or a twentieth of the inhabitants; we ought to make the most of them. They are all we have there; and if we repulse them and take away their authority, what is left in those States, what have we there? Will not those loyal men say, "What is the bounty to loyalty that you propose? Why, that we wait without any State government, that we submit to this military rule and dictation, which is so much deprecated, until we can convert more than a majority of the people to establish a State government."

Mr. President, I have one more word to say, and I was about to say it when I yielded the floor to the venerable Senator from Kentucky, [Mr. DAVIS.) This question, I take it, is here prematurely. It ought not to be here at this present time. It is not legitimately raised now. It can only be raised, I take it, in the joint convention which will meet on next Wednesday for the purpose of counting these votes. The Constitution provides that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted, not by the Vice President, for that does not follow, but shall be counted by that body there assembled in joint convention. Are we to undertake to decide, beforehand what shall be done, without knowing what votes are to be presented there? We cannot tell what votes you have now in your drawer, Mr. President, to be presented to that convention. We cannot tell whether the Governors have returned them. We cannot tell whether you have received them by mail or received them by the hands of the Governors, or whether you have received them from the district judges, who are to hold them as a last resort, so that you may get them. We cannot tell anything about that. Then why raise the ques

tion?

Mr. SHERMAN. I should like to trespass on the good nature of my friend from Pennsylvania to ask him a question. As I saw an experiment of this kind once tried, I should like to ask him if this power of ours can only be exercised after we have formed a joint convention, what rules would regulate the conduct of that joint convention? I will tell him a little circumstance which occurred eight years ago, when a somewhat distinguished individual of his own State was elected President of the United States. I was then a member of the House of Representatives. The Senate came into the Hall of the House with great form and ceremony, two and two, Mr. Mason, of Virginia, the arch-traitor, at their head. He took his seat as President of the Senate by the side of Mr. Speaker Banks. A question arose as to the vote of the State of Wisconsin. On account of a heavy snow storm, the electors of that State could not meet on the day fixed by law, and consequently tire vote was not cast on the day prescribed by law. When that fact appeared on reaching the vote of that State, a row, as we called it in the House, commenced. Mr. Humphrey Marshall wanted to make a speech and addressed "Mr. President." Mr. Mason refused to recognize him, but Mr. Banks recognized him; they were both sitting side by side. Then some Senators wanted to say something, and in five minutes we were in such complete confusion that Mr.Mason left his place at the Speaker's desk, went out, some of the Senators following him and some remaining behind amid the general jeers of the whole convention. That was the condition of affairs then, and it will be the condition of affairs perhaps next week if we leave this question open. As I happened to be present at that scene and saw it,

A portion of the people of Louisiana come here and say, "We are loyal, we owe you allegiance, we have a State government organized and in operation, and if you will aid and assist us we will keep it in organization and operation, and we will control and dominate after a time the rebels and secessionists." What is it proposed to answer to them? "You cannot come back; there are not enough of you." That will be very poor encouragement for the loyal men of the rebel States to try and bring back their people to reason, and it presumes another thing that never was true, that || I want to guard against its recurrence.

Can the Senator tell me by what rules the joint convention is to be governed; how they shall vote, whether per capita or by States; who shall preside; who shall put questions; whether the rules of the Senate as to debate shall prevail or the rules of the House of Representatives; because if the rules of the Senate prevail in the joint convention, we never could get through until a second President was elected? Surely that would be so in a convention of two hundred men, when we find it very difficult here in a body of forty or fifty to get to the end of any controverted matter. The votes would not be counted that day if the rules of the Senate prevailed as to debate, and the law prescribes that they shall be counted on that day. Who would put an end to the discussion? The question came up in the instance I put, when Mr. Humphrey Marshall proposed to speak and the President of the Senate would not recognize him, and would not recognize a Senator, and the Speaker of the House did recognize Mr. Humphrey Marshall; and the consequence was we got into disorder and confusion, and the joint convention broke up. It was one of the most ridiculous spectacles I have ever seen in a legislative body, and I hope never to see another such.

Mr. COWAN. I am only to take the Constitution as I find it written; and it is no argument to me that a general law has not been made by which to regulate the proceedings of this joint convention, if such a one is necessary. Perhaps the legislative department in this case has not deemed it necessary that there should be a general law to regulate the action of that convention when it was in session. Yet they are perfectly competent to make it. Perhaps they could not foresee that it would behave in such an extraordinary and ridiculous manner as has just been represented by the Senator from Ohio. What I mean to say is, that whether it has any law made beforehand to govern its action or not, it is unquestionably clothed with the power of receiving there and counting the votes.

I have no objection to the passage of a law by Congress that the Vice President of the United States shall preside in that convention, or that the Speaker of the House shall preside in it, and that the rules of the Senate, or the rules of the House of Representatives shall be adopted for its governance. If the disorder spoken of did occur, why did it occur? It did not occur because it was iniproper to clothe that body with that power, but it occurred because it was casus omissus, no provision had been made for the governance of the body in joint convention; but that it has the power and that it is the only tribunal which can count these votes and can settle the question as to what votes shall be counted, I take to be indisputable from this provision of the Constitution. If there is the mischief attendant upon it that has just been described, as I have stated before that mischief should be cured by law. It is not to be cured by our usurping the functions of that convention while we are separate and distinct bodies. It is not for us to provide by a law for this particular case, and to decide before we go there what votes shall be counted or shall not be counted, because if the convention cannot decide that question what is it there for?

Some honorable Senators have said that the members of the two Houses are there present only as witnesses, idle spectators of a scene in which they can take no part, and over which they have no authority. If that be the case, then there is one instance in this Constitution, magnificent monument of human wisdom as it is, which is utter, sheer absurdity. Are the two Houses there, as the e jockeys say, merely for the purpose of" seeing fair," or are they there in some capacity in which they have powerand authority to determine such questions as may arise while the counting is going on? I take it they have the authority, and that if they did not adopt rules for their governance, if they did not appoint a President, if they only went there loosely as a mob, a herd of men without organization, they could not expect to adjourn in anything less than the row which resulted upon that occasion.

I have only to repeat that I think this question is premature, that it is here improperly, and that nothing but mischief will come of it if we enter tain it in this shape; that no matter what we do with it, it will have no practical bearing upon the great end for which the whole of this machinery