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President put forward a plan for reorganizing loyal State governments in the Rebel territory, and he proffered a guaranty to these communities against domestic violence and Rebel invasion; but he neither proposed nor promised any representation in Congress or in the Electoral College. Nor would such a proposition or promise by him have possessed the slightest validity; because, by the Constitution, "each House is to be the judge of the elections, returns, and qualifications of its own members." This provision is inconsistent with any prerogative of the President over this question, even if such prerogative were not controlled by that other provision which reserves to Congress the power to admit new States into the Union.
The Proclamation declared, that, whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such State at the Presidential election of 1860, each having taken the particular oath prescribed by the Proclamation, and not having since violated it, and being a qualified voter by the election law of the State existing immediately before, its secession, and excluding all others, should reëstablish a State government which should be republican, and in no wise contravening the Proclamation oath, it should be recognized as the true government of the State, which should receive thereunder the benefits of the constitutional provision that "the United States shall guaranty to every State in this Union a republican form of government." Subsequently, in the same paper, the President declares "that whether members sent to Congress from any State shall be admitted to seats consti
tutionally rests exclusively with the respective Houses, and not to any extent with the Executive." Nothing is said on the participation of such reorganized State in the approaching Presidential election; and the question seems left open for the judgment of Congress, to which it obviously belongs, to be settled by joint action.
It is plain, therefore, that the reorganization contemplated by the President was in nature provisional. It was not complete or permanent, but evidently looked to the action of the legislative power to determine representation, whether in Congress or in the Electoral College. Loyal governments might be established in the manner indicated for the conservation of local order, and these would be recognized and upheld provisionally by the military power. Considered from this point of view, and in the absence of Congressional action, the President's plan of reconstruction was, to a certain extent, proper, if not necessary, and very little obnoxious to objections sometimes brought against it. A handful of persons keeping their loyalty might justly look to the military power for support against a hostile majority. Such a handful might be allowed to set up a local government for the management of local affairs, and to assist the National Government in the work of restoration. All this is natural. But the limitation is clear. Admitting it right to authorize the establishment of a local government for the benefit of a handful of loyal persons in a Rebel State, it does not by any means follow that such local government can be entitled to representation in the National Government as a loyal unit, on an equality with the loyal States of the Union. The two questions are entirely different, and the latter was wisely left untouched by the Proclamation.
Besides, the power of the President to institute this government is only as commander-in-chief of the army. It is therefore military in character. But what proceeds out of this power is, from the nature of the case, provisional or temporary, until it has received the sanction of Congress. To a certain extent, and from the necessity of the hour, military governments may be constituted by the President; but permanent civil governments, with
MR. COLLAMER. To last beyond the war.
MR. SUMNER. As the Senator from Vermont well suggests," to last beyond the war," with right of representation in Congress and in the Electoral College, cannot be constituted by the President. Such a power would be open to infinite abuse, and in the hands of an ambitious President might be employed for selfish purposes. The national safety, in harmony with republican principles, requires that it should be exercised by Congress, which must take the lead in calling the new government into being.
Against these conclusions there can be no argument founded on principle. But it may be said that the admission of Senators from Virginia constitutes a precedent. This is a mistake. The Virginia case is a precedent for nothing, unless it be to make us more careful for the future. It arose at the beginning of the troubles, before the relations of the Rebel States had become fixed by pertinacious war, and was little considered at the time. But, beyond all, it had this peculiarity, that a large section, geographically, of Virginia, had, in fact, declined to recognize the pretension of secession, and promptly constituted a loyal government
without military intervention, so that practically it had never been part of the Rebel Government. The circumstances were so exceptional, that this case cannot be cited to determine our conduct toward a State which in all its parts, throughout its whole jurisdiction, accepted the pretension of secession, and maintained it by arms. Such a State is, beyond all question, a Rebel State, with no title to a place in Congress or in the Electoral College, until readmitted to its ancient rights by a vote in both Houses of Congress.
The readmission of a Rebel State to representation is not less important than its original admission into the Union. And when it is considered that what is done for one such State will be a precedent for all, its importance is multiplied by the number of Rebel States; and this again is augmented infinitely by the disturbed condition of affairs, and the supreme duty to take every precaution for the restoration of permanent tranquillity. It is not enough, if we comply with certain forms, or constitute a State in name only. Much more must be done, and all this must be placed under fixed and irreversible guaranties. Vain is victory on the battle-field, if these guaranties are not obtained. To make these possible, our armies are now engaged in the deadly shock. That the future at least may be secure, the present is given over to blood and slaughter, to graves and epitaphs. And here is the difference between your responsibilities and those of the soldier. The latter sees only the present; but you must see the future also. The soldier meets the enemy face to face; the statesman, by wise precautions, provides that the enemy, once conquered, shall never rise again. Vain is the work of
the soldier, if not consummated and crowned by the wisdom of the statesman.
For years Slavery has been claiming guaranties in States and Territories, and these chambers have echoed to the hoarse, inhuman cry. At last another voice begins to prevail, ascending from basement to cupola, filling chamber and dome with diviner echo: it is the voice of Freedom claiming guaranties. In the absence of any constitutional prohibition of Slavery, it is evident that these guaranties can be obtained only under sanction of Congress in its legislative capacity. And here we are brought again to the question of representation; for as it is clear that representation cannot be conceded, until the guaranties for Freedom have been secured, so it follows, representation can be obtained only under the sanction of Congress in its legislative capacity.
That Congress in its legislative capacity must determine this question is sustained by the necessity of the case, by reason, by authority, and by the President's Proclamation.
1. I have already shown that guaranties for Freedom are a condition precedent to representation; so that, by the necessity of the case, the latter must be determined by the joint action of both Houses of Congress. Such is one form in which this necessity appears. But there is another.
Congress must have jurisdiction over every portion of the United States where there is no other government; but there can be no other government in the Rebel States; so that the words of Chief Justice Marshall are as applicable to a State without a loyal State government as they were originally to a Territory: