History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

A second thing of vital importance to the stability of this republic, Mr. Stevens asserted to be "that it should now be solemnly decided what power can revive, recreate, and reinstate these provinces into the family of States, and invest them with the rights of American citizens. It is time that Congress should assert its sovereignty, and assume something of the dignity of a Roman senate. It is fortunate that the President invites Congress to take this manly attitude. After stating, with great frankness, in his able message, his theory—which, however, is found to be impracticable, and which, I believe, very few now consider tenable—he refers the whole matter to the judgment of Congress. If Congress should fail firmly and wisely to discharge that high duty, it is not the fault of the President."

Mr. Stevens closed his speech by setting the seal of reprobation upon a doctrine which is becoming too fashionable, that "this is a white man's Government." He uttered a severe rebuke to those who thus "mislead and miseducate the public mind."

There were some Republicans in Congress who disagreed with Mr. Stevens in his theory of the condition of the late rebel States, yet no one ventured immediately, to use a contemporary expression, "to take the Radical bull by the horns."

At length, three days afterward, Mr. Raymond, as a representative of the "Conservatives," ventured a reply. He thus set forth his theory as in opposition to that of Mr. Stevens: "I can not believe that these States have ever been out of the Union, or that they are now out of the Union. I can not 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. 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 States 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 these 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."

Referring to the citation of authorities made by Mr. Stevens, Mr. Raymond maintained that they did not lend the "slightest countenance to the inference which was drawn from them."

In reply to the theory maintained by Mr. Stevens, that States forfeited their State existence by the fact of rebellion, Mr. Raymond said: "I do not see how there can be any such forfeiture involved or implied. The individual citizens of those States went into the rebellion. They thereby incurred certain penalties under the laws and Constitution of the United States. What the States did was to endeavor to interpose their State authority between the individuals in rebellion and the Government of the United States, which assumed, and which would carry out the assumption, to declare those individuals traitors for their acts. The individuals in the States who were in rebellion, it seems to me, were the only parties who, under the Constitution and laws of the United States, could incur the penalties of treason. I know of no law, I know of nothing in the Constitution of the United States, I know of nothing in any recognized or established code of international law, which can punish a State as a State for any act it may perform. It is certain that our Constitution assumes nothing of the kind. It does not deal with States, except in one or two instances, such as elections of members of Congress and the election of electors of President and Vice-President.

"Indeed, the main feature which distinguishes the Union under the Constitution from the old Confederation is this: that whereas the old Confederation did deal with States directly, making requisitions upon them for supplies and relying upon them for the execution of its laws, the Constitution of the United States, in order to form a more perfect Union, made its laws binding on the individual citizens of the several States, whether living in one State or in another. Congress, as the legislative branch of this Government, enacts a law which shall be operative upon every individual within its jurisdiction. It is binding upon each individual citizen, and if he resists it by force, he is guilty of a crime, and is punished accordingly, any thing in the constitution or laws of his State to the contrary notwithstanding. But the States themselves are not touched by the laws of the United States or by the Constitution of the United States. A State can not be indicted; a State can not be tried; a State can not be hung for treason. The individuals in a State may be so tried and hung, but the State as an organization, as an organic member of the Union, still exists, whether its individual citizens commit treason or not."

Mr. Raymond subsequently cited some of the consequences which he thought must follow the acceptance of the position assumed by Mr. Stevens. "If," said Mr. Raymond, "as he asserts, we have been waging war with an independent Power, with a separate nation, I can not see how we can talk of treason in connection with our recent conflict, or demand the execution of Davis or any body 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 could 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.