CHAPTER XIX.

THE DOCTRINE OF STATE VITALITY.

A TEST OF POSITIONS IN DEBATE-SENATOR JOHNSON TRIUMPHANTLY ANSWERS SENATOR HOWE -THE SENATOR IN THE ARENA WITH THE LOGICAL RAPIER THE SOCRATIC METHOD OF JOHNSON-HOWE'S COOL PARRIES AND JOHNSON'S KEENER THRUSTS - THE SCENE IN THE SENATE COMPARED WITH THE WARREN HASTINGS TRIAL-THE IMMORTALITY OF THE STATES-SECESSION ORDINANCES VOID-NOT WAR, BUT INSURRECTION-THE FEELING SOUTH WAS PROBATION NECESSARY? - NORTHERN APPREHENSIONS - WAR RESULTS SAFE-NEGRO ENFRANCHISEMENT — THE BALLOT INEVITABLE — PARTISANSHIP PILLORIED-THE CONSTITUTION AS THE PALLADIUM OF THE NORTH AND SOUTH.

T

HE author has, in the preceding chapters, set forth the views, respectively, of the two great political parties in regard to the policy of the war for the Union. In the Second Decade of this volume, the issues growing out of that war in regard to the relations of the victorious to the vanquished states, constitute the great theme for debate and congressional settlement. For the purpose of enabling the reader to get a clear understanding of the positions taken by the same parties in regard to those issues, the author has selected one debate in the Senate between distinguished representatives of the two parties. A few extracts from it, and a few comments on the arguments, will be sufficient for that purpose. The leading contestants in this debate, after which there were so many similitudes, were two Senators of very different types. The Senator from Wisconsin, Timothy O. Howe, was a man of the New England style. He was born in Livermore, Maine, and was an admirable judge — less advocate than judge. He was slow in speech and almost melancholy in manner. He seemed to be fatigued at the end of every sentence. He was of the same class of the genus homo as William H. Seward and Simon Cameron. He was tall and thin, pallid as death, and immobile in his restful and unimpassioned habitudes. How unlike the sturdy and fervid Marylander, Reverdy Johnson, who so triumphantly replied to his dialectics. The willowy, dilatory mode of the one was in contrast with the sturdy robustness of the

THE SECEDING STATES ON TRIAL.

355 other. The voice of Senator Howe was not resonant. He spoke as if he were exhausted. Reverdy Johnson's elocution, albeit trained in the solemn hush and reclusiveness of the Supreme Court, was loud, orotund, and defiant. What a venerable English form the latter had; what a peculiar eye, which in after years became sightless; what an expressive mouth and form. His portrait in the Attorney-General's office is quite unlike the original, except in a certain artistic repose. The writer remembers these Senators with a social pleasure, derived from a knowledge of their remarkable and genial qualities. Other men have been more praised than Timothy O. Howe, the Postmaster-General under President Hayes; but other men never deserved more encomium than he from his side in this great argument. But when the Maryland Senator brought his interrogative skill into the arena, his rapier pierced the heart of the contention at every thrust. The parrying of the Wisconsin Senator was adroit, but the cunning of fence and the courage of conviction of the Marylander were resistless.

To complete the surroundings of such a momentous contest, one would wish for the picturesque pencil of Macaulay. There is no equal for graphic style of that scene in the High Court of Parliament, when the peers sat in the great hall of William Rufus "to try an Englishman for tyranny over the holy city of Benares, and over the ladies of the princely house of Oude!" True, no such garniture of traditions had gathered about the new Senate Chamber. There was no military or civic pomp; no avenues lined with grenadiers; no peers robed in velvet and ermine; no judges in the vestments of state, or earl-marshals and princely personages, resplendent with golden cordons and knightly orders. Our freshly-decorated Senate Chamber was not hung with scarlet. Its colored lights from the ceiling shed a garish, not a dim religious radiance upon the prevailing drab of the walls. From the galleries, in eager interest, leaned forward forms of female grace, companies of soldiers in undress uniforms, and citizens who served in the departments. Here and there, mingling in the crowded audience, were seen colored men, their heads crisp with Numidian curl, "but dazed with the recondite issue and scene!" Fox and Sheridan,— the British Demosthenes and Hyperides; Burke and Windham; and supreme above all, Hastings himself, give human interest to the picture which glows in Macaulay's page. But here in our Senate House, the fate, the condition, the contumacy, and the so-called crime of many republics is in grand inquest. The writer clearly recalls the scene of that eleventh of January, one and twenty years ago. Members of the House of Representatives, since eminent at home and abroad, flock to the Senate to hear Senator Johnson reply to the superb speech made the day before by the Wisconsin Senator; and of which the essence of its argument has been given in the preceding chapter. The prayer is offered; the journal is read; petitions, reports, bills, and a dull debate about assessors are listened to impatiently. Some words from Senator

-

Anthony are heard, and remarks from Sumner, Fessenden, Trumbull, Doolittle, Grimes, and others about the Paris Exposition; and then a vote is had on the latter. Now, a sharp rap is heard from the president pro tempore, Lafayette Foster. He calls up the great problem of the provisional governments and of the vitality of the states. The reporters sharpen their pencils, and the Senators settle themselves in their chairs. They are all intent to catch each syllable. Upon the left of the chair sit the few Democrats remaining in this august body. Observe the keen, intellectual, close-shaven face of Buckalew, of Pennsylvania; the suave expression which marks the handsome countenance of Hendricks, of Indiana; the unmistakable pioneer and reckless air of Nesmith, of Oregon; the small but defiant figure of Garrett Davis, of Kentucky; the debonair Stockton, of New Jersey; and the solid solemnity of Guthrie, of Kentucky. These are about all of the regulars of the old party present. They constitute about one-tenth of the seated Senators. But what new Senators are these, now anxiously waiting to hear the accents of the grand Marylander? Doolittle, Gratz Brown, Dixon, Cówan, and Trumbull, all rare and accomplished in debate, soon to become giants of those fierce and fervent days of discussion. They are ready to accept the new situation, as champions of Andrew Johnson's administration, for the unimpaired energy of statehood.

What an array upon the other side! Chandler, Lot Morrill, Poland, Nye, Pomeroy, Sprague, Williams, Yates, Ramsay, Henderson, Wilson, Fessenden, and Sumner, like Jove "above them all, by his great looks, and power imperial." Others there are, who are inconsiderable as dust, in the balances of debate. The Lanes of Indiana and Kansas,-genii of that day of weird Western politics, - McDougall, of California, and Saulsbury, of Delaware, twin relics of that hour of excitement, - these are absent. Rough Ben Wade and courtly John Sherman soon come in, and Ohio, through them, gives heed to the utterances of the logical and leading member of the reconstruction committee.

There are many debates on these reconstruction questions. Many might be chosen to bring out the salient points, but they would not answer the author's purpose as well as this one. They cover thousands of pages of the legislative records. They evince patriotism and partisanship, loyalty and learning, enthusiasm and eloquence. Indeed, never were contests between embattled armies more thrilling than these debates in the legislative arena. Throughout, whether in the House or the Senate, two lines of argument, determined by opposite views of constitutional construction, are faithfully pursued, one line by the orators of one party, the other by the orators of the other party. The Democrats are always upholding the Constitution as a grant of limited powers, with indestructible, reserved rights remaining in the states and people of the Union. The Republicans are holding, in effect, the same doctrine for a time of peace; but another one for

PARTY POSITIONS ON RECONSTRUCTION.

357 a time of insurrection. In the latter condition, the Republicans would suspend the constitutional provisions, and make them inoperative at the will of the National Legislature. Both parties are undoubtedly acting with unfaltering loyalty to the Union; and neither is, at any time, entirely free from the dangerous spirit of partisanship. Naturally this spirit most exhibits itself in the dominant party, when the war has ceased with the defeat of secession. Power is never willingly surrendered.

The debate between Senators Howe and Johnson was conducted entirely as upon a constitutional question. Mr. Johnson's reply was a masterly elucidation. It set forth the Democratic doctrine respecting the constitutional status of the states that had attempted to secede from the Union. He commenced by defining the Republican position, as follows:

"I understand the honorable member from Wisconsin to say that the effect of the hostilities which we have been carrying on to suppress the insurrection in certain of the states where it has prevailed for some four years, is to extinguish altogether the states as such, and to reduce the territory of which those states were composed at the time when the insurrection broke out to the condition of territories, and to subject the people of those states to be governed under that clause of the Constitution which gives to Congress the power to govern the territories, or upon the ground that they may have been conquered by the United States, and that the power to govern is to be implied from the right of conquest when the conquest is completed."

To this Mr. Howe replied: "If the honorable Senator is simply stating what he understands to be the effect of my argument, I cannot object to it; but if he understood me to say that the purpose for which we prosecuted this war was to extinguish those states, he misunderstood me."

Mr. JOHNSON: "I have not so stated. I did not understand the honorable member as saying that the purpose for which the war was prosecuted, but that the result of the prosecution of the war, was to reduce those states to the condition of territories. It is to that proposition -"

Mr. HowE: "If the honorable Senator will pardon me for one moment, my position was not that the result of the prosecution of the war was to reduce the states to territories, but that they assumed the legal character of territories by reason of their own acts, independent of the war. They destroyed the state organizations, not we."

Mr. JOHNSON: "I so understood you."

Mr. Howe: "And the effect of the war was simply to reduce them to obedience to the United States, to be governed by such instrumentalities as the Constitution has provided."

Mr. JOHNSON: "I am sure I have not misapprehended the Senator. It would have been very difficult for any one to misapprehend him, for he was exceedingly lucid in everything he said. It may be possible that I may fail to explain what I understand to have been his propositions, and if I should

do so in any part of the remarks I am about to make, I hope the honorable Senator will set me right."

Here Mr. Johnson entered into the discussion of the question as to the effect of the war itself. First.-Did it reduce the states to the condition of territories? Second.-If this was not its effect, was that effect produced by any conduct upon the part of the citizens residing within the limits of those states?-As shown above, Mr. Howe had put himself on the affirmative side of the latter question.—“No member of the Senate," said Mr. Johnson, "is now to learn that there is no power in the Constitution of the United States given to Congress, or any other department of the government, to declare or carry on a war against any state. The power to declare war, devolved upon Congress by the eighth section of the first article, is a power evidently looking to a war between the United States and a foreign nation." He held that the power to protect the United States, or a state, by military force against insurrection was a different power from that given to Congress for protection against foreign invasion. "If," said he, "there could be any doubt, looking to the character of the government, that such is the limitation of the war power, that doubt would be removed by the fact that there is in another part of the same section a provision which looks to the carrying on of such a contest as the one in which we have just been engaged.” He denied that there had been any exercise of the war power of the government in quelling the late insurrection. The power which had been exercised was granted in the same section in express terms, namely, in that which provided for calling forth the militia to execute the laws of the United States and suppress insurrection. The latter he regarded as a police power. No conquest, in the proper sense of the term, could be achieved under this police power. It could extinguish no existing institution in any state, and certainly it was not intended to destroy any state in which it might be exercised. He enforced this view by a reference to the proceedings of the constitutional convention. It had been suggested in those proceedings that Congress should have the authority to make war against a state. This propo

sition was repudiated as fatal to the government by two leaders of that body of mighty men, Hamilton and Madison. They both denied that, as far as the convention had proceeded at that time, any such authority was given to Congress, and they protested against the propriety of conferring any such power. It was never conferred.

The question of the national war powers had been before the Supreme Court of the United States in the recent Prize cases. The opinion in these had been very much relied upon as maintaining in part the doctrine for which the Republican party contended. Mr. Justice Grier, in delivering the opinion of the Court in these cases, had used this language:

"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a state, or any number of