But, sir, I cannot believe that this is our condition. I cannot believe that these States have ever been out of the Union, or that they are now out of the Union. I cannot believe that they ever have been, or are now, in any sense a separate Power. If they were, sir, how and when did they become so? They were once States of this Union—that every one concedes; bound to the Union and made members of the Union by the Constitution of the United States. If they ever went out of the Union it was at some specific time and by some specific act. I regret that the gentleman from Pennsylvania (Mr. Stevens) is not now in his seat. I should have been glad to ask him by what specific act, and at what precise time, any one of those States took itself out of the American Union. Was it by the ordinance of secession? I think we all agree that an ordinance of secession passed by any State of this Union is simply a nullity, because it encounters in its practical operation the Constitution of the United States, which is the supreme law of the land. It could have no legal, actual force or validity. It could not operate to effect any actual change in the relations of the State adopting it to the national Government, still less to accomplish the removal of that State from the sovereign jurisdiction of the Constitution of the United States.
Well, sir, did the resolutions of the States, the declarations of their officials, the speeches of members of their Legislatures, or the utterances of their press accomplish the result? Certainly not. They could not possibly work any change whatever in the relations of these States to the General Government. All their ordinances and all their resolutions were simply declarations of a purpose to secede. Their secession, if it ever took place, certainly could not date from the time when their intention to secede was first announced. After declaring that intention, they proceeded to carry it into effect. How? By war. By sustaining their purpose by arms against the force which the United States brought to bear against it. Did they sustain it? Were their arms victorious? If they were, then their secession was an accomplished fact. If not, it was nothing more than an abortive attempt—a purpose unfulfilled. This, then, is simply a question of fact, and we all know what the fact is. They did not succeed. They failed to maintain their ground by force of arms—in other words, they failed to secede.
But the gentleman from Pennsylvania (Mr. Stevens) insists that they did secede, and that this fact is not in the least affected by the other fact that the Constitution forbids secession. He says that the law forbids murder, but that murders are nevertheless committed. But there is no analogy between the two cases. If secession had been accomplished, if these States had gone out, and overcome the armies that tried to prevent their going out, then the prohibition of the Constitution could not have altered the fact. In the case of murder the man is killed, and murder is thus committed in spite of the law. The fact of killing is essential to the committal of the crime; and the fact of going out is essential to secession. But in this case there was no such fact. I think I need not argue any further the position that the rebel States have never for one moment, by any ordinances of secession, or by any successful war, carried themselves beyond the rightful jurisdiction of the Constitution of the United States. They have interrupted for a time the practical enforcement and exercise of that jurisdiction; they rendered it impossible for a time for this Government to enforce obedience to its laws; but there has never been an hour when this Government, or this Congress, or this House, or the gentleman from Pennsylvania himself, ever conceded that those States were beyond the jurisdiction of the Constitution and laws of the United States.
During all these four years of war Congress has been making laws for the government of those very States, and the gentleman from Pennsylvania has voted for them, and voted to raise armies to enforce them. Why was this done if they were a separate nation? Why, if they were not part of the United States? Those laws were made for them as States. Members have voted for laws imposing upon them direct taxes, which are apportioned, according to the Constitution, only "among the several States" according to their population. In a variety of ways—to some of which the gentleman' who preceded me has referred—this Congress has, by its action, assumed and asserted that they were still States in the Union, though in rebellion, and that it was with the rebellion that we were making war, and not with the States themselves as States, and still less as a separate, as a foreign Power.
Why, sir, if there be no constitution of any sort in a State, no law, nothing but chaos, then that State would no longer exist as an organization. But that has not been the case, it never is the case in great communities, for they always have constitutions and forms of government. It may not be a constitution or form of government adapted to its relation to the Government of the United States; and that would be an evil to be remedied by the Government of the United States. That is what we have been trying to do for the last four years. The practical relations of the governments of those States with the Government of the United States were all wrong—were hostile to that Government. They denied our jurisdiction, and they denied that they were States of the Union, but their denial did not change the fact; and there was never any time when their organizations as States were destroyed. A dead State is a solecism, a contradiction in terms, an impossibility.
These are, I confess, rather metaphysical distinctions, but I did not raise them. Those who assert that a State is destroyed whenever its constitution is changed, or whenever its practical relations with this Government are changed, must be held responsible for whatever metaphysical niceties may be necessarily involved in the discussion.
I do not know, sir, that I have made my views on this point clear to the gentleman from Pennsylvania (Mr. Kelley), who has questioned me upon it, and I am still more doubtful whether, even if they are intelligible, he will concur with me as to their justice. But I regard these States as just as truly within the jurisdiction of the Constitution, and therefore just as really and truly States of the American Union now as they were before the war. Their practical relations to the Constitution of the United States have been disturbed, and we have been endeavoring, through four years of war, to restore them and make them what they were before the war. The victory in the field has given us the means of doing this; we can now re-establish the practical relations of those States to the Government. Our actual jurisdiction over them, which they vainly attempted to throw off, is already restored. The conquest we have achieved is a conquest over the rebellion, not a conquest over the States whose authority the rebellion had for a time subverted.
For these reasons I think the views submitted by the gentleman from Pennsylvania (Mr. Stevens) upon this point are unsound. Let me next cite some of the consequences which, it seems to me, must follow the acceptance of his position. If, as he asserts, we have been waging war with an independent Power, with a separate nation, I cannot see how we can talk of treason in connection with our recent conflict, or demand the execution of Davis or anybody else as a traitor. Certainly if we were at war with any other foreign Power we should not talk of the treason of those who were opposed to us in the field. If we were engaged in a war with France and should take as prisoner the Emperor Napoleon, certainly we would not talk of him as a traitor or as liable to execution. I think that by adopting any such assumption as that of the honorable gentleman, we surrender the whole idea of treason and the punishment of traitors. I think, moreover, that we accept, virtually and practically, the doctrine of State sovereignty, the right of a State to withdraw from the Union, and to break up the Union at its own will and pleasure. I do not see how upon those premises we can escape that conclusion. If the States that engaged in the late rebellion constituted themselves, by their ordinances of secession or by any of the acts with which they followed those ordinances, a separate and independent Power, I do not see how we can deny the principles on which they professed to act, or refuse assent to their practical results. I have heard no clearer, no stronger statement of the doctrine of State sovereignty as paramount to the sovereignty of the nation than would be involved in such a concession. Whether he intended it or not, the gentleman from Pennsylvania (Mr. Stevens) actually assents to the extreme doctrines of the advocates of secession.