If these States are out of the Union their State governments are still in force unless otherwise changed. And 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 seceded 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 gentleman [Mr. Davis] 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 and unlimited”—“subject only to revision by the people of the whole 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.... From that decision of the Congress there is no appeal to the people of Ohio, but only to the people of Massachusetts, and New York, 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!
The rights of the States, he said in conclusion, had reconciled liberty with empire, the freedom of the individual with increase of the public domain; by the proposed measure these were all swept instantly away. It substituted “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 maintains integrity of territory but destroys the rights of the citizen.” Finally he declared that he preferred separation to the unity which the bill would create.[[330]]
Debate was concluded by Henry Winter Davis, who rose for the purpose of perfecting the pending measure by moving as a substitute a bill essentially the same as that under consideration in the House; from that plan, however, it differed in two not unimportant particulars. First, it excluded what his friend Mr. Cox had objected to, the rule of one tenth, and required a majority to concur in forming a government. The other softened the operation of the clause excluding officers of the State and Confederate government, by saving merely ministerial officers and the inferior military officers; so that the exclusion merely affected persons of dangerous political influence. By an arrangement with Thaddeus Stevens, instead of having a direct vote on his substitute, a portion of it was proposed as a preamble to this bill, which, of course, would be voted on separately and take whatever fate the House might assign to it. With these observations Mr. Davis said, “I offer this as a substitute, and move the previous question upon it.” The substitute was agreed to, and the amendment to the preamble adopted, the preamble itself being rejected. By 73 yeas to 59 nays, the bill passed the House, May 4, 1864.[[331]]
This important measure authorized the President, by and with the advice and consent of the Senate, to appoint for each of the States declared in rebellion a provisional governor, with pay and emoluments not to exceed that of a brigadier-general of volunteers, and who was to be charged with the civil administration of such State until a government was recognized as existing therein. As soon as military resistance to Federal authority had been suppressed, and the people had sufficiently returned to their obedience to the Constitution and the laws, it was made the duty of the governor to direct the United States marshal to enroll all white male citizens of the United States, resident in the State, in their respective counties; and wherever a majority of them took the oath of allegiance, the loyal people of the States were, by proclamation, to be invited by the governor to elect delegates to a convention to act upon the reëstablishment of a State government, the proclamation to prescribe the details of the election. Qualified electors in the army could vote at the headquarters of their respective commands. No person who had held or exercised any civil, military, State or Confederate office under the rebel occupation, and who had voluntarily borne arms against the United States, could either vote or be eligible as a delegate. The convention was required to insert in the constitution the following provisions:
First. No person who has held or exercised any office, civil or military, except offices merely ministerial and military offices below colonel, State or Confederate, under the usurping power, shall vote for or be a member of the Legislature, or Governor.
Second. Involuntary servitude is forever prohibited, and the freedom of all persons is guaranteed in said State.
Third. No debt, State or Confederate, created by or under the sanction of the usurping power, shall be recognized or paid by the State.
Upon the adoption of such a constitution by the convention and its ratification by the voters of the State the provisional governor should so certify to the President, who, after obtaining the assent of Congress, was empowered by proclamation to recognize the government so established, and none other, as the constitutional government of the State; from the date of such recognition, and not before, Senators and Representatives as well as electors for President and Vice-President could be legally chosen in such State. Until reorganization the provisional governor was to enforce the laws of the Union, and of the State before rebellion.