"In short, a state of war was declared to exist in that event. It will be observed that that statute did not make any law for the States which had attempted to secede and were in arms. It named no State whatever. It was a general law that when the people of a State are in insurrection and claim to act under the authority of the State, and the State authorities do not repudiate it and do not stop it, then the President may declare them to be in insurrection, and thereupon a state of war exists; and the Supreme Court of the United States, differing about the blockade question before that, all decided that after that act was passed the state of war was complete.

"Now, Mr. President, in order to conform our legislative acts to that law which we have already passed and that condition of things which exists, I propose to offer a substitute for this resolution, which I shall presently send to the desk. The President's proclamation declaring certain States to be in a state of rebellion and insurrection, was duly issued under the law of 1861, which I have just read. That is all matter of public record. We know what the proclamation is. We know that it was issued according to law. It declared a state of war. The proclamation is before me, but I need not read it. It declares under the act which I have read, that certain States are in a condition of war and insurrection. Has that ever been changed? Have any States declared by that law and proclamation to be in this condition, ever altered their condition? The state of war certainly still continues.

"In view of the statement which I have made, I propose in place of the resolution, which seems to me obnoxious to the objections I have made, to strike it all out, and also the preamble, and to insert simply this:

That the people of no State, the inhabitants whereof have been declared in a state of insurrection by virtue of the fifth section of the act entitled "An act further to provide for the collection of duties on imports, and for other purposes," approved July 13, 1861, shall be regarded as empowered to elect electors of President and Vice-President of the United

States until said condition of insurrection shall cease

and be so declared by virtue of a law of the United

States.

"This is not a resolution declaring any State to be in this condition, and legislating for any State by name, or making any distinction between particular States. It is simply a law in pursuance of the act of 1861, declaring what shall be the effect which shall follow a certain condition of things into which any State may fall. For the reasons I have stated, I desire that this substitute shall be adopted in lieu of the resolution."

Mr. Johnson, of Maryland, followed, saying: "The question, Mr. President, is whether Con gress have any authority to legislate at all on this subject. I agree with the chairman of the Judiciary Committee and my friend from Vermont that the authority exists; and I was somewhat surprised to find that it was disputed by gentlemen of such distinction every way, and particularly in their profession, as the honora ble member from Wisconsin and the honorable member from New York. The Constitution of the United States does not provide in any way a mode by which a contested election grow ing out of an alleged informality in voting, of an alleged illegality upon the part of those who voted, or an alleged incapacity on the part of those voted for, is to be decided. The honor able member from Illinois is right in saying that if we are governed by the mere letter of the Constitution in this particular, there is n power existing by which any thing more ca be done than to have the votes counted. He i right in saying that looking to the mere lette of the provision there is no authority given t the President of the Senate to count the votes He is right, also, in saying that there is no pro vision in the Constitution which decides whe shall declare the result of the voting afte the votes shall have been counted. In relation to all these points the Constitution is silent; bu the Constitution provides that certain person shall not be voted for as President of the Unite States. No one who is not a native-born citize of the United States, or who was not a citize at the time of the adoption of the Constitution can be voted for. Members of Congress an officers under the Government cannot be s lected as electors. The States are only autho ized to appoint through their Legislatures number of electors equal to their number Senators and Representatives. Now, if a pe son not a native citizen of the United State or not a citizen in 1789, when the Constitutio was adopted, is voted for as President, or if member of Congress of either branch or an of cer of the United States is voted for as an ele tor, or if more than the number of votes which a State is entitled is cast, there is clause in the Constitution which provides mode by which these objections may be obviate If the Vice-President is to count the vote, a he is to decide the result, and is merely to cide the result, according to the words of t instrument alone, then he may declare that A is elected President of the United States, though the whole country knows that A B not a native citizen of the United States. he may count all the votes of any one St (for his function it is supposed is only to cour he may count all the votes cast by the State New York when, in point of fact, New Yo has cast more votes than she is authorized cast under the Constitution.

"How are these questions to be decid As it is very clear that in the instances to wh I have referred-and there are others-ther

an absence of any authority given to the VicePresident or to the two Houses when meeting in convention to decide them if they should arise, one would suppose-unless we are to remain without a President, or to have placed in the presidential office a man who is not eligible, or to have one placed there by votes which there was no constitutional right to cast-that there must be some mode by which those difficulties are to be obviated.

Now, Mr. President, the honorable member from New York-I do not understand my friend from Wisconsin as going to the extent of that objection-says that he denies to Congress the power to declare that the votes of any State are not to be counted. Does he mean to say that the votes of the States in rebellion are to be counted? I do not speak of Louisiana, because he may perhaps be able to excep: Louisiana ont of the category of rebel States; but assuming now that there are rebel States, and assuming that Louisiana is one of the rebel States, does my friend from New York say that the votes of those States are to be counted? I presume not; and yet if we do not legislate upon the subject, where is the power to exclude them? The Vice-President of the United States may think it his duty to count them; he may think it his duty, counting them, to declare the result of the election consequent upon that count; and it makes no difference that we know outside of the balloting that the result will be the same whether those votes are counted or excluded, the principle is the same. We are not to know, we do not officially know, what the result of the election has been. Who can know (officially, I mean) how the electors have voted?

"It is true that my honorable friends from New York and from Wisconsin, and that is my opinion as I am at present advised, think that the efforts of those rebellious citizens to take those several States out of the Union are legally imperfect; that is to say, in the contemplation of the Constitution they are still subject to the powers of the Constitution, and the war is being carried on for the purpose of making them yield obedience to the Constitution upon the hypothesis that they are responsible to all the obligations of allegiance. That is all true; but it is equally true that they are in a state of rebellion. The Supreme Court of the United States has decided unanimously that since the passage of the act to which my friend from Vermont has referred, the act of July 13, 1861, all the States named in the preamble to this resolution are now at war with the United States, and that the United States have not only the right but it is their duty to prosecute that war to a success by bringing them back, they being (not in a constitutional sense, but practically) out of the Union. Now, is it possible that the inhabitants of a State thus at war with the United States have a right to vote in any Presidential election for President of the United States?"

Mr. Cowan, of Pennsylvania, said: "I should

like to hear the honorable Senator from Maryland speak to this question, which is involved in the last clause of the amendment offered by the Senator from Vermont: suppose the rebellion to be entirely suppressed, is it necessary then, in order to restore them to their rights in the Union, that we should enact a law that it was suppressed?"

Mr. Johnson, of Maryland, replied: “My own opinion has been throughout that the States are not out, in one sense; and if all the inhabitants of those States were now to throw down their arms, admit their allegiance to the United States, and elect their members to the Senate, &c., hereafter, after the rebellion was entirely terminated, perhaps they would be entitled to their seats; but I am not prepared to say whether I shall hold that opinion upon examination or not. All that I mean to say now is, that it is incumbent upon us to provide by law for a contingency which has now happened, although it may never happen again, so far as the particular effects are concerned; and it is now, above all, the best time to provide for it, because, although we do not know officially that it will have the slightest effect upon the result, we do know that there is involved in an exigency of that description very great peril."

Mr. Collamer, of Vermont, said: "I desire to add to the amendment that I have offered these words:

Nor shall any vote cast by any such electors elected by the votes of the inhabitants of any such State, or the Legislature thereof, be received or counted.

"According to my view, when a state of war has been declared to exist, declared according to law, we cannot recognize a state of peace and reconciliation in any other way but by declaring it by law, or authorizing the President to declare it by law."

Mr. Ten Eyck, of New Jersey, said: "I am not in favor of the adoption of the substitute proposed by the Senator from Vermont, although it is always with the greatest diffidence in the world that I venture to differ from him in any well-considered proposition that he submits to the Senate. I understand his substitute to be based upon the idea that under the act of Congress and the President's declaration, we are now in an actual state of war with these eleven Southern States, and that it will require an act of Congress to enable them to resume their position again in the Federal Union. That presupposes, in the first place, that they are out of the Union, a fact which I am not willing to admit and can never assent to; but I do not propose to insist upon that. The main direction of the argument is, that inasmuch as the President has declared these States to be in a condition of insurrection under an act of Congress passed in 1861, therefore it will require an act of Congress to enable them to resume their legitimate or ordinary State functions; or, in other words, it will require an act of Congress to authorize them to elect electors for President and Vice-President, and, as a necessary conse

quence, to elect Senators to this body, or Representatives to the House of Representatives.

"I do not mean to weary the Senate by read ing at large the statute of 1861, but I may be permitted perhaps to refer to it for the purpose of showing the object, intent, and scope of that enactment. It is entitled, not 'An act to declare war against the States of South Carolina, Virginia, and others,' but 'An act further to provide for the collection of duties on imports, and for other purposes.' The fifth section authorizes the President in certain cases to declare the inhabitants of certain States to be in a state of insurrection by virtue of the power conferred upon him by the act of February 28, 1795. It goes on to declare that it shall be lawful for the President, whenever he shall call forth the militia, in pursuance of the act to which I have referred

To suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by the President, and when said insurgents claim to act under the authority of any State or States, and such claim is not disclaimed or repudiated by the persons exercising the functions of government in such State or States, or in the part or parts thereof in which said combination exists, nor such insurrection suppressed by said State or States, then, and in such case, it may and shall be lawful for the President, by proclamation, to declare that the inhabitants of such State, or any section or part thereof, where such insurrection exists

"Not a state of actual war

are in a state of insurrection against the United, States; and thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condition of hostility shall continue.

"This is the object of the act. When these people, in the opinion of the President of the United States, are in the condition specified in this act, he shall issue his proclamation declaring that fact; and thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condition of hostility shall con

tinue.

"In pursuance of that act of Congress the President issued his proclamation, and I shall refer to a portion of it. The proclamation bears the date of August 16, 1861. It recites the act of 1861 to which I have just referred; it also recites the act of 1795, under which he derives the authority, and then proceeds to declare:

Now, therefore, I, Abraham Lincoln, President of the United States, in pursuance of an act of Congress approved July 13, 1861, do hereby declare that the inhabitants of the said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida (except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore named as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by forces of the United States engaged in the dispersion of said in

surgents), are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with

the exceptions aforesaid, and the citizens of other States and other parts of the United States, is unlaw. ful, and will remain unlawful until such insurrection shall cease or has been suppressed.

"The object, design, and intent of the act was to prohibit trade with these insurgents, to prevent persons in the loyal part of the Union from carrying on commercial intercourse with them, and from furnishing them with provisions and munitions of war with which they might continue to prosecute this rebellion; and then there was an exception from the scope and effect of the act in favor of the State of West Virginia and such other States or parts of States as maintained a loyal adhesion to the Union and the Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgents.

"Now, if it comes to the knowledge of the joint convention to be assembled on Wednesday of next week that in either of these States this insurrection has been suppressed, and that the people of either one of those States have assumed the suspended functions of their State government, have reorganized a State constitution, have elected State officers, and have put their civil government into full execution and operation, and that fact comes before us attested and undisputed, I inquire whether, under the the President, it is necessary that there should provisions of this law and the proclamation of be an act of Congress passed in order to establish the fact that these people have reorganized and reassumed their ancient loyal functions? Why, sir, I thought that this whole war, the expenditure of thousands of millions of dollars and of oceans of blood, was for the very purpose of restoring this Union and bringing back these shooting stars to their ancient orbits.

"I differ with the Senator from Michigan, who would make the return of these States to the Union attendant with the utmost difficulty. Whenever I was satisfied that there was a true, genuine, loyal feeling among the inhabitants of any of these States to repudiate their heresies and return to their allegiance, and that there was a sufficient body of them to justify the proceeding, and to carry on all the essential, neces sary operations of State governments, and to perform their duties within the limits of the Union, I should be disposed to extend the hand of encouragement to the loyal people, always saving and reserving not only terms of indignation for the leaders, but the privilege and firm determination of punishing in the most condign manner the guilty authors and leaders and instigators of the rebellion."

Mr. Cowan, of Pennsylvania, followed, saying: "The preamble states the fact of the rebellion prevailing in these States, and the resolution declares that because of this fact stated in the preamble these States ought not to vote. That is the proposition from the committee.

The amendment of the honorable Senator from Vermout, on the other hand, proposes to take the question in blank, and to declare that all the States which were proclaimed to be in a state of insurrection by the President ought not to vote until that insurrection has been declared by law to be suppressed. I am opposed to that amendment for divers reasons, and I think if we come to examine this question fairly we shall see that any action of ours intended to prevent Louisiana, for instance, and Arkansas from voting, will be perhaps a breach of faith on the part of this Government, and a violation of that courtesy which is due from one department of it to another.

"Sir, what are the facts? It is said that by the act of July 13, 1861, these States are cut out from the Union and debarred from all their privileges as States, political as well as others. I do not so read the act of July 13, 1861; nor do I conceive that that was its purpose, because in endeavoring to get at a fair construction of a law, it is always necessary to ascertain what was the purpose of the lawgiver. I apprehend, so far from its being the purpose of that law to put these States out of the Union, it was its intention to keep them in; that is, it was intended to be a means to keep them in, although for the purpose of better achieving that end all commercial intercourse was cut off with them, but not political intercourse. They were not deprived of any of their rights as States, or from exercising any of the functions of States, provided they were able to do so in due time.

"In pursuance of that act of Congress, the President, by his proclamation of August 16, 1851, declared Louisiana in a state of insurrection. By the proclamation of January 1, 1863, he exempted thirteen parishes of the State from the operation of the emancipation proclamation. Why? Because he says in that proclamation that the rebellion does not exist in those thirteen parishes; that that condition of things upon which he was allowed before that time to issue his proclamation did not exist in those parishes, and therefore he exempted them. We recognized the validity of that proclamation, I believe; at least we have always treated it with that respect which is due to the act of another department of this Government when it is not grossly in violation of law or of the Constitution. By the proclaration, however, of the 8th of December, 1863, the President invited the people of Louisiana and of all the other States to resume their State rights and State functions, provided one-tenth of them would agree to make the proper organization. "Now, as I understand the question here, it is simply this: in pursuance of that invitation extended by the President, and upon the footing of his proclamation declaring that those rights should be restored to them, and that they would be protected in the exercise of them, the people of Louisiana, in numbers sufficient to bring them within his terms, have

organized a State government, and have it now actually in operation in the State of Louisiana. The question simply is, whether we will carry out that arrangement of the President in good faith, or whether we will violate it; and that is the question which presents itself distinctly upon the propositions now before this body. The President has invited a number of the people of these States which have been oppressed with the rebellion to go to work to reorganize their State governments, and has promised that he will extend, and this Government will extend, to them the protection guaranteed by the Constitution; and he goes so far as to state that phrase of the Constitution in hæc verba. Will we stand by it? That is the question. Will we carry it out in good faith? If we are willing to do so, then there is no difficulty; and this one-tenth of the people, or whatever the nuinber may be, will become for this occasion the State of Louisiana, and the State of Arkansas, or any other State that sees fit to accept those conditions.

Mr. Davis, of Kentucky, said: "The question now is, whether the two Houses in their legisla tive capacity may lay down certain principles and regulations to prevent disorder and confusion in the act of counting the presidential votes? I think they may.

"Where the Constitution directs an act to be done, it invests all needful power to enable that act to be conveniently done. As I understand the Constitution, the power to count the votes is vested in the two Houses of Congress. That is a power to be executed under the Constitution. A general provision of the Constitution provides that Congress may pass all laws necessary and proper to carry into execution any power vested by the Constitution in the Goverument of the United States or in any of the departments or officers thereof. This power to count the presidential votes is certainly vested by the Constitution somewhere. It is vested in the two Houses. The manner in which the count shall be made is not prescribed by the Constitution. Then comes in the general power given to Congress to pass all laws necessary and proper to execute any of the powers vested by the Constitution in the Government or in any department or officer thereof.

"I understand that that incidental power is simply proposed to be executed by this joint resolution in declaring certain principles and forms by which the count shall be made. This count is to be made in subordination to the Constitution. The Constitution declares that no man shall be eligible to the office of President unless he be a native-born citizen or a citizen of the United States at the adoption of the Constitution. Suppose the State of Louisiana had voted for a man who did not come up to that qualification, who was not a native citizen of the United States, or who had not resided in the United States at the time of the adoption of the Constitution, would it not be the duty of the two Houses, in conting the