“One word more, sir, and I have done. If Congress passes this resolution, and the State is admitted, no court will hereafter be able to decide that she is not a State in the Union, and no court therefore can call in question the validity or effect of any provision to be found in her constitution. One of the provisions of this constitution is that all the slaves of Louisiana are emancipated. Pass this resolution, admit the State, and that provision is effectual at once.”[[413]]
Mr. Sumner, having in mind the fundamental condition imposed by Congress upon the admission of Missouri, offered the following amendment of the resolution from the Committee on the Judiciary:
Provided, That this shall not take effect except upon the fundamental condition that within the State there shall be no denial of the electoral franchise, or of any other rights on account of color or race, but all persons shall be equal before the law. And the Legislature of the State, by a solemn public act, shall declare the assent of the State to this fundamental condition, and shall transmit to the President of the United States an authentic copy of such assent whenever the same shall be adopted, upon the receipt whereof he shall, by proclamation, announce the fact; whereupon, without any further proceedings on the part of Congress, this joint resolution shall take effect.[[414]]
Though Senator Clark favored the principle of Sumner’s amendment, he opposed it, as it stood, because it affected a resolution which proposed “to recognize the government in the State of Louisiana,” which in his judgment was still a State in the Union, “having its constitution overthrown, but desiring and attempting to establish a new” one; and he added, “I hold that we have no power to amend that constitution; and that is the reason why I shall be obliged to vote against it here.”
He spoke for the adoption of Trumbull’s resolution and, in doing so, traveled some of the ground gone over by Henderson. The government of Louisiana, Mr. Clark believed, belonged to the Union people. He was not aware that any definite number of persons was required to constitute a State, nor did he understand how the majority by going into rebellion could take away the rights of the loyal minority.
The guaranty of a republican form of government was made, he asserted, to meet precisely such a case as had arisen in Louisiana. In this view it became the duty of Congress to protect the government established by the minority.[[415]]
Mr. Pomeroy, speaking to the principle of Sumner’s amendment, declared that he would vote against all measures that looked like Congressional interference with the right to vote in the States. Saulsbury interrupted him to inquire what he would have done had the President, or his Secretary of War, sent armed soldiers to the polls and imposed a test upon voters as was done in Delaware, where Democrats were chased into swamps and compelled in the night time to lie out in the snow. Pomeroy’s only reply to this was to relate his own experience under Democratic supremacy in the early days of Kansas. He resumed his remarks on Louisiana, but these had been anticipated by the speakers who preceded him. In conclusion he asserted that there were two reasons for recognizing Arkansas where there was but one in favor of Louisiana.[[416]]
The Delaware Senator did not fail to call attention to Pomeroy’s evasion, and said he was glad to observe a change in the spirit of some of his Republican friends. “I think,” he said, “they begin to scent the danger in the distance; that they begin to see that if a Government of law is to be destroyed, and power is to be concentrated in Executive hands, or in the hands of Executive agents, there is an end of liberty in this country. I hail the dawn, therefore, of a better day.”[[417]]
Mr. Henderson again entered into the discussion, and in the course of his remarks drew from Senator Sumner this remarkable statement concerning Louisiana: “It is in and it is not. [Laughter.] The territory is in; but as yet there is no State government that is in.” In this discussion Sumner asserted also that when the bill of his friend Senator Wade was before Congress no one questioned its constitutionality though it proposed to interfere in the suffrage and to impose a condition upon States at the time of their reconstruction. Pomeroy dissented from the doctrine that Congress could reconstruct the insurgent States, and maintained that the only question then was whether they would recognize what the people of Louisiana had done.
Reverdy Johnson pointed out to Sumner the great increase of representation in Congress which the South would acquire by an extension of the suffrage to negroes. The three fifths provision, he said, would be done away with, and he made the further observation that for years to come the entire colored vote of that section would be in the hands of a few white men. He urged recognition of both Louisiana and Arkansas, so that the constitutional amendment would become binding, for unless ratified by three fourths of all the States it would be open to doubt.