May 30, 1866

The opinion of Attorney General Cushing, one of the ablest men who has ever occupied the position of Attorney General, has been read here, in which he states clearly that the Indians, though born upon our soil, owing us allegiance, are not citizens; they are our subjects; and that is the very word which is used in this amendment proposed to the Constitution of the United States, declaring that if they be" subject" to our jurisdiction, born on our soil, they are, ipso facto, citizens of the United States.

Mr. President, the celebrated civil rights bill which has been passed during the present Congress, which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned, uses the following language:

"That all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

Why should this language be criticised any more now. when it is brought forward here in this constitutional amendment, than when it was in the civil rights bill? Why should the language be more criticised here than it is in the second section of this constitutional amendment, where the same words are used? The second section, in apportioning representation, proposes to count the whole number of persons in each State, "excluding Indians not taxed." Why not insert those words in the first section as well as in the second? Why not insert them in this constitutional amendment as well as in the civil rights bill? The civil rights bill undertook to do this same thing. It undertook to declare that "all persons born in the United States, and not subject to any foreign Po ver excluding Indians not taxed", are hereby declared to be citizens of the United States." But, sir, the committee of fifteen, fearing that this declaration by Congress was without validity unless a constitutional amendment should be brought forward to enforce it, have thought proper to report this amendment.

Mr. FESSENDEN. I want to say to the honorable Senator, who has a great regard for truth, that he is drawing entirely upon his imagination. There is not one word of correctness in all that he is saying, not a particle, not a scintilla, not the beginning of truth.

Mr. DOOLITTLE. I take a little issue with my friend from Maine on that point as a question of fact.

Mr. FESSENDEN. In the first place, this was not brought forward by the committee of fifteen at all.

Mr. DOOLITTLE. This proposition was first introduced into the House by a gentleman from Ohio by the name of Bingham.

Mr. FESSENDEN. I thought the Senator was speaking of this first part of the section, the amendment, not the whole.

Mr. DOOLITTLE. No, sir; that is proposed by the Senator from Michigan. As I understand, a member from Ohio, Mr. Bingham who in a very able speech in the House maintained that the civil rights bill was without any authority in the Constitution, brought forward a proposition in the House of Representatives to amend the Constitution so as to enable Congress to declare the civil rights of all persons, and that constitutional amendment, Mr. Bingham being himself one of the committee of fifteen, was referred by the House to that committee, and from the committee it has been reported. I say I have a right to infer that it was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that this proposition to amend the Constitution now appears to give it validity and force. It is not an imputation upon any one.

Mr. GRIMES. It is an imputation upon every member who voted for the bill, the inference being legitimate and logical that they violated their oaths and knew they did so when they voted for the civil rights bill.

Mr. DOOLITTLE. The Senator goes too far. What I say is that they had doubts.

Mr. FESSENDEN. I will say to the Senator one thing: whatever may have been Mr. Bingham s motives in bringing it forward, he brought it forward some time before the civil rights bill was considered at all and had it referred to the committee, and it was discussed in the committee long before the civil rights bill was passed. Then I will say to him further, that during all the discussion in the committee that I heard nothing was ever said about the civil rights bill in connection with that. It was placed on entirely different grounds.

Mr. DOOLITTLE. I will ask the Senator from Maine this question: if Congress, under the Constitution now has the power to declare that "all persons born in the United States, and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens of the United States," what is the necessity of amending the Constitution at all on this subject?

Mr. FESSENDEN. I do not choose that the Senator shall get off from the issue he presented. I meet him right there on the first issue. If he wants my opinion upon other questions, he can ask it afterward. He was saying that the committee of fifteen brought this proposition forward for a specific object.

Mr. DOOLITTLE. I said the committee of fifteen brought it forward because they had doubts as to the constitutional power of Congress to pass the civil rights bill.

Mr. FESSENDEN. Exactly; and I say, in reply, that if they had doubts, no such doubts were stated in the committee of fifteen, and the matter was not put on that ground at all. There was no question raised about the civil rights bill.

Mr. DOOLITTLE. Then I put the question to the Senator: if there are no doubts, why amend the Constitution on that subject?

Mr. FESSENDEN. That question the Senator may answer to suit himself. It has no reference to the civil rights bill.

Mr. DOOLITTLE. That does not meet the case at all If my friend maintains that at this moment the Constitution of the United States, without amendment, gi es all the power you ask, why do you put this new amendment into it on that subject?

Mr. HOWARD. If the Senator from Wisconsin wishes an answer, I will give him one such as I am able to give.

Mr. DOOLITTLE. I was asking the Senator from Maine.

Mr. HOWARD. I was a member of the same committee, and the Senator s observations apply to me equally with the Senator from Maine. We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.

Mr. DOOLITTLE. The Senator has made his answer, I suppose.

Mr. HOWARD. Yes, sir.

Mr. DOOLITTLE. Mr. President, when the Senator undertakes to say that I have any disposition to subject the freedmen to the despotism of their old masters, he says that which there is not a particle of foundation or excuse for saying. I say to that Senator-

Mr. HOWARD. I beg the Senator to allow me one word. I made no personal imputation against the Senator from Wisconsin.

Mr. DOOLITTLE." I desire to finish my sentence before being interrupted.

Mr. HOWARD. I will not be forced by the Senator into a false position.

Mr. DOOLITTLE. 1 do not desire to be interrupted until I finish one sentence. I say to that Senator that so far as the rights of the freedmen are concerned, I am willing to compare my course of action in this body or elsewhere with his. I say to that Senator that I labored as hard as he has labored to secure the rights and liberties of the freedmen, to emancipate the slaves of the South, and to put, an end forever not only to slavery, but to the aristocracy that was founded upoa it; and I have never, by word or deed, said or done anything, as a member of this body or elsewhere, tending to build up any oppression against the freedmen, tendingto destroy any of theirrights. I say to that honorable Senator, and I am ready at any time to meet him in argument upon it although it is drawing me now from the question in dispute, that I myself prepared and introduced here and urged a bill whose provisions defended every right of the freedmen just as much as the bill to which we have now made reference, and I am prepared to do so and to defend their rights with the whole power of the Government.

But, sir, the Senator has drawn me off from the immediate question before the Senate. The immediate question is, whether the language which he uses, "all persons subject to the jurisdiction of the United States," includes these Indians. I maintain that it does; and, therefore, for the purpose of relieving it from any doubt, for the purpose of excluding this class of persons, as they are, in my judgment, utterly unfit to be citizens of the United States, I have proposed this amendment, which I borrow from the Constitution as it stands, which our fathers adopted more than seventy years ago, which I find also in the civil rights bill which passed this present Congress, and which I find also in the second section of this constitutional amendment when applied to the enumeration of the inhabitants of the States. I insist that it is just, proper in every way, but reasonable, that we exclude the wild Indians from being regarded or held as citizens of the United States.

Mr. WILLIAMS. I would not agree to this proposed constitutional amendment if I supposed it made Indians not taxed citizens of the United States. But I am satisfied that, giving to the amendment a fair and reasonable construction, it does not include Indians not taxed. The first and second sections of this proposed amendment are to be taken together, are to be construed together, and the meaning of the word "citizens," as employed in both sections, is to be determined from the manner in which that word is used in both of those sections. Section one provides that—

All persons born in the United States, and subject to the jurisdiction thereof, are citizens of tlie United States and of the State wherein they reside.

If there be any doubt about the meaning of that paragraph, I think that doubt is entirely removed by the second section, for by the second section of this constitutional amendment Indians not taxed are not counted at all in the basis of representation. The words in the second section are as follows:

Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

They are not to be regarded as persons to be counted under any circumstances. Indians not taxed are not even entitled to be counted as persons in the basis of representation under any circumstances; and then the section provides—

But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, &c.

Now, can any reasonable man conclude that the word" citizens" there applies to Indians not taxed, or includes Indians not taxed, when they are expressly excluded from the basis of representation and cannot even be taken into the enumeration of persons rpon 39th Cong. 1st Sess —No 182. whom representation is to be based? I think it is perfectly clear, when you put the first and second sections together, that Indians not taxed are excluded from the term "citizens because it cannot be supposed for one moment that the term "citizens," as employed in these two sections, is intended to apply to Indians who are not even counted under any circumstances as a part of the basis of representation. I therefore think that the amendment of the Senator from Wisconsin is clearly unnecessary. I do not believe that Indians not taxed" are included, and I understand that to be a description of Indians who maintain their tribal relations and who are not in all respects subject to the jurisdiction of the United States.

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here," subject to the jurisdiction of the United States," to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of those words, 1 think that doubt is entirely removed and explained by the words in the subsequent section; and believing that, in any court or by any intelligent person, these two sections would be construed not to include Indians not taxed, I do not think the amendment is necessary.

Mr. SAULSBURY. I do not presume that any one will pretend to disguise the fact that the object of this first section is simply to declare that negroes shall be citizens of the United States. There can be no other object in it, I presume, than a further extension of the legislative kindness and beneficence of Congress toward that class of people.

"The poor Indian, whose untutored mind,

Sees God in clouds, or hears him in the wind," was not thought of. I say this not meaning it to be any reflection upon the honorable committee who reported the amendment, because for all the gentlemen composing it I have a high respect personally; butthat is evidently the object. I have no doubt myself of the correctness of the position, as a question of law, taken by the honorable Senator from Wisconsin; but, sir, I feel disposed to vote against his amendment, because if these negroes are to be made citizens of the United States, I can see no reason in justice or in right why the Indians should not be made citizens. If our citizens are to be increased in this wholesale manner, I cannot turn my back upon that persecuted race, among whom are many intelligent, educated men, and embrace as fellow citizens the negro race. I therefore, as at present advised, for the reasons I have given, shall vote against the pi oposition of my friend from Wisconsin, although I believe, as a matter of law, that his statements are correct.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from Wisconsin to the amendment proposed by the Senator from Michigan.

Mr. DOOLITTLE. I ask for the yeas and nays on that question.

The yeas and nays were ordered.

Mr. VAN WINKLE. I desire to have the amendment to the amendment read.

The Secretary read the amendment to the amendment, which was to insert after the word "thereof" in the amendment the words "excluding Indians not taxedso that the amendment, if amended, would read:

All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the State wherein they reside.

The question being taken by yeas an d nays, resulted—yeas 10, nays SO; as follows:

YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, McDougall, Norton, and Riddle—10.

NA YS—Messrs. Anthony, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman Stewart, Sumner, Trumbull, V aia Winkle, Wade, Willey. Williams, and Wilson—;!().

ABSENT—Messrs. Brown, Chandler Dixon Lane of Indiana, Nesmith, Saulsbury, Sprague, Wright, and Yafos 9

So the amendment to the amendment was rejected.

The PRESIDENT pro tempore. The question now is on the amendment of the Senator from Michigan.

The amendment was agreed to.

The PRESIDENT pro tempore. The next amendment proposed by the Senator from Michigan [Mr. Howard] will be read.

'The Secretary read the amendment, which was in section two, line twenty two after the word "male," to strike out the word "citizens" and insert "inhabitants, being citizens of the United States so as to make tlio section read:

Brcc 2 Representatives shall be apportioned among the several States which may be included within the Union, according to their respective numbers, counting the whole numberof persons each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male inhabitants, being citizens of the United States, not less than twenty one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twentyone years of age.

Mr. JOHNSON. Is it supposed that that amendment changes the section as it was before? It appears to me to be the same as it was before, because, although the word" inhabitants" is used, it is in connection with the other words that they are to be citizens of the United States. As it originally stood it read: But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens.

Mr. FESSENDEN. The object is the same as in the amendment already made, to prevent, a State from saying that although a person is a citizen of the United States he is not a citizen of the State.

Mr. HOWARD. The object is to make section two conform to section one, to make them harmonize.

Mr. JOHNSON. I am satisfied.

The amendment was agreed to.

Mr. SAULSBURY. Is it in order now to offer an amendment to the first section?

The PRESIDENT pro tempore. There are several more amendments before the Senate, offered by the Senator from Michigan, [Mr. Howard,] not yet acted upon. The next amendment offered by him will be read.

The Secretary read the amendment, which was to add at the end of section two the words "in such State."

The amendment was agreed to.

The next amendment was to insert as section three the following:

Sec. 8. That no person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who. having previously taken an oath, as a member ot Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the ame or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability.

Mr. HENDRICKS. I move to amend the amendment by inserting after the word "shall" in the thirty seventh line the words "during •the term of his office." I presume I understand the idea upon which this section rests. It is, I suppose, that men who held office, and upon assuming the office took the oath prescribed by t he Constitution, became obligated by that oath to stand by the Constitution and the oath, and that going into the rebellion was not only a breach of their alleigance, but a breach of their oath. I presume that isthe theory of it; and that persons who have violated the oath to support the Constitution of the United States ought no t to be allowed to hold any office. If it does not rest upon that proposition, then I am not able to see why these men should be excluded more than others who have violated their allegiance. Now, sir, what is the obligation prescribed in the sixth article of the Constitution?

"The Senators and Representatives before mentioned, and the members of the several State Legislatures. and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution."

I presume that that oath means that in the discharge of the duties of the office the party will support the Constitution of the United States. I have not examined any authorities j upon this subject, and have seen no opinion expressed upon it, but I presume that is the j meaning and force of the oath. When a Senator of the United States takes the oath to sup- j support the Constitution of the United States, it means that, as a Senator, in the discharge of j his official duty, he will obey the Constitution, and in no respect violate its provisions. If a member of a State Legislature takes that oath, I presume it means that as a legislator for the State he will respect and obey the Constitution, and when his term of office has expired I suppose the oath ceases to be obligatory upon him, or, rather, that the oath has done its work. If he has obeyed the oath while he held the office, I presume his obedience to it is no longer required by virtue of the oath itself. Everybody, by virtue of his allegiance, is bound to obey the Constitution of the United States, to stand by the Union. But this oath of itself is an oath of office binding upon him as an officer, else why is it that if a Senator taking this oath, serves six years and is reelected, he is sworn again? For the simple reason that he is entering upon another term of service, and for that term of service he must take this official oath to obey the Constitution of the United States. I presume this oath means as if it read, "Senators and Representatives and all other officers in the United States and in the States shall be bound by an oath or affirmation to support the Constitution of the United States in their offices." I know of no other purpose that there can be to require a special oath from an officer. If this be the proper construction of the oath—and I do not express an opinion upon the subject with a great deal of confidence— then the amendment which I propose to this section ought to be adopted, because after the term of service has expired in any particular office the official oath is satisfied, and the party becomes one of the mass of the community, and if he went into the rebellion he went into it violating his allegiance, like any and all other citizens who with him went into the rebellion, it is for that reason that I propose the amendment.

Mr. HOWARD.- I hope this amendment will not be adopted. I do not regard the constitutional oath referred to by the Senator from Indiana precisely in the same light in which he presents it. If I understand him rightly, he holds that although a person may have taken that constitutional oath, if he has not committed insurrection during the continuance of his term of office, but commits that act after the expiration of that term, the previous taking of the oath by him adds to the act no additional moral guilt. I do not concur with him in that view. It seems to me that where a person has taken a solemn oath to support the Constitution of the United States there is a fair moral implication that he cannot afterward commit an act which in its effect would destroy the Constitution of the United States without incurring the guilt of at least moral perjury. I desire to see such a comment made upon this violation of the oath of office by insurgents as will stigmatize that act for all time to come, and I think the loyal people of the United States are of the same opinion.

Mr. SAULSBURY. I had supposed that the Senate would adopt this amendment without any discussion. -The proposition of the Senator from Indiana, in my judgment, is so plain that I did not suppose it could have been questioned, that the oath a person takes when he enters upon the exercise of an office, or as preparatory to the discharge of the duties of an office, relates simply and solely to that office and does not extend beyond it. I never heard the interpretation of the oath of office as given by the Senator from Indiana questioned before. I shall therefore vote for his amendment.

Mr. VAN WINKLE. If I understand the language and effect of this amendment, it is intended to debar those who were under that oath of office at the time they went into rebellion from hereafter holding office either under the State or national Government. I certainly concur with the Senator from Indiana, that the binding force of an official oath only continues as long as the term of the office. If it is the intention to exclude from these privileges any one who has ever held an office under the national Government or the State governments, then the language of the section is correct as it is; but if it is intended to confine it to those who were at the moment of separating themselves from the Government and going over to the rebellion under the obligation of an oath to support the Constitution, then I think the amendment offered by the Senator from Indiana should be adopted. We all admit that the obligation to support the Constitution is as binding on every citizen of the United States as an oath can make it, and that in fact oaths in most cases are of no effect except to have a most solemn acknowledgment of the duty that the oath seems to many to impose; but it does add something to the guilt of the party that at the time he engaged in rebellion he was actually under the obligation of an oath to support the Constitution. I shall favor the amendment if the object is to exclude those who were in the actual exercise of these offices, and therefore under the binding force of their official oaths, at the moment that they embarked in the rebellion. Whatever view the majority have of it of course should govern the language employed; but understanding that the word "oath" is here introduced to designate that class of persons, I shall vote with the Senator from Indiana for his amendment. It would have been sufficient, if the other view was to prevail, to have said that no one who had ever held office under the General or State government should have these privileges, and then there would be no necessity of course for introducing this amendment. I hope that it will prevail, because while it will exclude a very great many it will still leave some to hold office in the southern States, especially in those States where they will have very few qualified persons, and where many, we may infer, have a less degree of guilt at least than those whom this amendment will exclude.

Mr. JOHNSON. I am opposed to the amendment as proposed by the committee, and shall vote, therefore, for the amendment suggested by the member from Indiana, because the former excludes too many persons from eligibility to office. All history shows, as I think, that on the conclusion of a civil war, the more mild, consistently with the safety of the country, the measures are which are adopted the better for the restoration of entire peace and harmony.

The effect of the amendment of the committee will be to embrace nine tenths, perhaps, of the gentlemen of the South, to disfranchise them until Congress shall think proper by a majority of two thirds of each branch to remove the restriction, I have no idea that with a provision like this, the constitutional amendment will receive the sanction of any southern State, for if the suggestion of the member from Indiana is not adopted then all who have at any time held any office under the United States or who have been in any branch of the Legislature of a State, which they could not be without taking the oath required by the Constitution of the United States, are to be excluded from holding the office of Senator or Representative or that of an elector for President, or any office, civil or military, under the United States; and not satisfied with that, all who have held office under any State, military or civil, legislative or judicial, are to fall within the inhibition.

Mr. FESSENDEN. Those who have been members of a State Legislature.

Mr. JOHNSON. And all that have held judicial office. They are all obliged to take the oath.

Mr. FESSENDEN. The Senator will observe it is following the constitutional provision.

Mr. JOHNSON. I know it is. But all the members of the State Legislature, all the judicial officers of the State, are compelled to take the oath prescribed by the Constitution of the United States; and I suppose it is fair to estimate that persons will be excluded who held office twenty and thirty years ago, as well as those who held office at the time the rebellion broke out. Now, I put it to Senators to say whether they think that these southern States will, with such a restriction as that, accept this constitutional amendment. If the amendment was in separate articles, so that each article might be acted upon separately by the States, the rejection of some of the articles would not be so fatal, perhaps, as will bearejection ofthe whole. Suppose the whole is rejected, and it must be if any part is, where are we? Just where we are now. Where are we now? As far as arms are concerned, peace has returned; as far as harmony is concerned, peace is apparently as far off as ever: and what is to be the effect upon the prosperity of the States which are to be kept in this condition of thralldom? Who will go as immigrants into the southern States? Who will invest their capital, who will engage in the cultivation of cotton and of rice and of sugar? And just in proportion as these products are lessened, just so in proportion is the prosperity of the whole country delayed.

I have had occasion to say more than once, and the idea is so fully impressed upon my mind that I hope the Senate will excuse me for reiterating it, that we ought to consider, it is due to justice to consider, it is due to generosity and magnanimity to consider, that many ofthe men who will be excluded by this constitutional amendment from sharing in the honors of the country believed that the Constitution as it stood gave them the right to secede. Illegal as the notion was in my judgment, yet some of the brightest intellects in the country, North as well as South, maintained the same doctrine; and the war, therefore, in which we have been engaged was not a war like the civil wars which have existed in other countries. It was a war growing out of a difference of constitutional opinion, to say nothing of anything else. The opinion entertained by the South was as honest as was the opinion entertained by the North—wrong, dangerous, unconstitutional, inconsistent as I think it is with the continuance of any Union to be formed out of the States of the United States, but still honestly entertained. Now they have become satisfied by the result of the conflict that their doctrine was one which could not be maintained and never will be suffered to exist as long as the people of the United States are true to the interest and the prosperity and renown ofthe country.

Why, then, should we exclude the numerous class that will be excluded by this provision? Do you not want to act upon the public opinion ofthe masses of the South? Do you not want to win them back to loyalty? And if you do, why strike at the men who, of all others, are most influential and can bring about the end which we all have at heart? That my friend from Indiana properly construes the obligation of that oath I have no doubt. I think every lawyer in the Senate would say, every statesman within the sound of my voice would say, that for no act done after the termination of the official term of the officer, inconsistent with the Constitution of the United States, by him who had been the incumbent of the office, could he bo indicted for perjury; and if he could not be indicted for perjury, it could only be because the legal obligation of the oath—I am not speaking now of the moral obligation—expired at the termination of the term of office to which the party had been elected or appointed.

Then as to the moral obligation, what does it add to the force of that moral obligation which allegiance as between the Government and the party owing the allegiance creates? Treason has been committed against the United States, according to the letter of the law and according to our understanding of the law; but it is neither more nor less treason, it is not a milder or more aggravated type of treason, because the parties who may have committed it may at some time or other have taken an oath to support the Constitution of the United States. If any man was indicted who had not taken that oath, he could not be permitted to urge in his defense or in extenuation of his crime that he had never taken an oath to support the Constitution.

But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the gill nation. No man is to be a Senator or Representative or an elector for President or Vice President

Mr. MORRILL. Let me call the Senator s attention to the words "or hold any office, civil or military, under the United States."

Mr. JOHNSON. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but 1 was misled by noticing the specific exclusion in the case of Senators and Representatives. But I submit to the Senate whether it is advisable, whether it is politic, looking to the end which we all seek to accomplish, the true restoration of the Union, a union of hearts as well as a union of hands, that you should exclude the large mass of people from participating in the honors of the Government who will be excluded by this provision.

Mr. GUTHRIE. I am inclined to vote for this amendment without going into a criticism upon the legal effect of the oath. I am against the section altogether on account of its proscriptive nature. I will vote for the amendment, because if it be adopted it will reduce the number to whom the section will apply. I should be glad if now, after having been so many months in session, we had agreed among ourselves as to the conciliation of the South, because conciliation at last is our only true policy; for unless we come to agree with each other; unless we are able again to meet and unite in these Halls as citizens and representatives of a common country, to shape the destinies of that country in Congress, to direct it against embattled nations, if it shall become necessary, we are not a united people.

This third section is not an act of conciliation, it is an act of proscription. It is true it is not as extensive as the third section sent to us from the other House was. I think we have gained an advantage in that respect. That measure was intended to proscribe all the active population of the rebel States, because they all stood by the southern movement. This section as it now stands certainly proscribes the representative men of the South, the men who had influence, and who still have influence in their localities, and who can do more in the work of conciliation here and elsewhere than all the men that you leave out of it. They are the representative men of the South, they have the confidence of the people of that section of the country. I think they have given abundant evidence that they are satisfied that they have tried the game of secession and given it up honestly and entirely, and are willing to come back to join in the Government heart and hand, and carry forward its flag, looking to the bright destiny of this nation in the future. The amendment will make the section less prescriptive, diminish the number which fall victims under its rule, and for that reason I shall vote for it. Now is the hour for conciliation, now is the time to trust in the South.

Mr. HENDRICKS. It is proper, perhaps, I should say that I do not expect to vote for the third section whether the amendment which I propose be adopted or not; but I suppose that 1 understood the purpose of the caucus, from which this amendment came, to be to exclude the men who violated their oath of office when they went into the rebellion, who added moral perjury to the crime of violating their allegiance. I thought the language went further than the caucus intended, and therefore I moved this amendment with a view of confining the section to the very case which I had a right to presume was intended to be met. If my amendment be adopted, it will leave the section to exclude all persons who at the time they went into the rebellion were under the obligation of an official oath to support the Constitution of the United States.

Mr. SHERMAN. I would ask my friend, the Senator from Indiana, whether it excludes those who resigned an office in the United States Army, for instance, for the purpose of going into the rebellion. Does not his amendment exclude from the operation of the section those who held office under the United States, resigned it, and then went into the insurrection, as in the case of General Lee?

Mr. HENDRICKS. I think not. If the Senator will observe the language he will see that it has not the effect which he fears. I use the words "during the term of his office." A man s term does not expire because he resigns his office. If a man holds an office the term of which the law fixes at four years, the term is four years If he holds an office during good behavior, the term is thus fixed; the resignation of an officer does not put an end to the term; that is judicially settled. In some of the States, for political purposes, it is provided in the constitution that a man elected to a judicial office shall not, during the term of the office for which he was elected, be eligible to any other office. Judicial officers holding office under a constitution like that have resigned during the term and been elected to other offices, executive, perhaps, in their character, and the courts have always held that they could not take the office to which they were elected when the term of the previous office was fixed by law. That is clear law, I presume, so that I think the word "term" excludes all men who, at the time they went into the rebellion, were under the obligation of an official oath to support the United States Constitution.

Mr. VAN WINKLE. I hope the Senator will make that point clear.

Mr. HENDRICKS. Ifthesewordswillmake it any more conclusive, I am willing to say, "during the term of office for which he was electedor appointed;" but I think the expression "during the term of the office" is equally comprehensive.

Mr. SHERMAN. I do not know that it is worth while to discuss the precise effect of the amendment, because I think the Senator from Indiana is satisfied that his amendment will not prevail; but the objection which occurred to me the moment it was offered was, that it would relieve from the operation of the third section the very men who ought to be excluded from ever hereafter holding office under the United States. Take the case ofSenators holding seats as members of this body who resigned their seats here and went directly to the South and took up arms. The term of their office in some cases expired by limitation on the 4th of March after they retired from here, and before they actually took up arms; and yet, on leaving this Senate Chamber, they proceeded to the South and organized rebellion, and they would be relieved from the operation of this section by the amendment of the Senator from Indiana.

So in the case of officers of the Army and Navy, all of whom had sufficient respect for the oath w ich they had taken to resign their offices and to see carefully that their resignations were accepted, so that the termination of their office was authenticated in the records of the War Department and the Navy Department. Then, having put an end to their offices under the United States, they proceeded to the South and organized rebellion against the Government of the United States. They would, in my judgment, be relieved from the operation of the third section.•

But I take it all of us understand the meaning of the third section. It is that, for a time at least, all who have violated not only the letter but the spirit of the oath of office they took when they became officers of the United States, and took the oath to support the Constitution of the United States, shall not hold office until a state of affairs shall come when two thirds of both Houses may, by a general amnesty, wipe out all these disabilities: and it seems to me that this is a reasonable stipulation, one that the United States may exact After the attempted revolution in England in 1745, the English Government was considered extremely liberal when, two years after the Pretender had been overthrown by force of arms, all the pains and penalties imposed by Great Britain on his adherents were removed, except the power to hold office; and I believe all who took part in that rebellion were forever disfranchised from holding an office of honor, trust, or profit in the kingdom of Great Britain. It was considered extremely liberal that all the other penalties of treason were removed.

The effect of this section is simply to remove all the penalties that rest on these men for treason except the power to hold office; and if a new generation of men should hold all the offices in the southern States; if the young men who are now growing up should hold all the offices of honor, trust, and profit there, I think no harm would result. If those men who have once taken an oath of office to support the Constitution of the United States and have violated that oath in spirit by taking up arms against the Government of the United States are to be deprived for a time at least of holding office, it is not a very severe stipulation.

Mr. HENDRICKS. I ask for the yeas and nays on my amendment.

The yeas and nays were ordered; and being taken, resulted—yeas 8, nays 84; as follows: YEAS— Messrs. Buckalew, Davis, Guthrie, Hendricks, Johnson, Riddle, Saulsbury, and Van WinNAYS—Messrs. Anthony, Chandler, Clark, Cowan, Conness. Cragin, Creswell. Doolittle, Edmunds, Fessenden. Foster, Grimes, Harris, Henderson Howard Howe. Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Norton, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Wade. Willey, Williams, and Wilson—34.

ABSENT—Messrs. Brown, Dixon, MeDougall es inith. Sprague, Wright, andYates—7.

So the amendment to the amendment was rejected.

Mr. JOHNSON. I move now to amend the amendment by striking out all after "States" in line thirty five down to the word "State in line thirty six The' words which I propose to strike out are "or as a member of any State Legislature, or as an executive or judicial officer" of any State." I ask for the yeas and nays on this.

The yeas and nays were ordered.

Mr. COWAN. I am opposed to this section m toto. I am opposed to the infliction of punishment of any kind npon anybody unless by fair trial where the party himself is summoned and heard in due course of law. I am as much opposed to a bill of pains and penalties, or to the exercise of judicial power by Congress through the medium of an amendment to the Constitution, as I am opposed to it in an act of Congress where it is expressly forbidden, and in any vote which I give upon propositions to modify this section I do not, wish to be understood as being willing to vote for that principle in any event.

The question being taken by yeas and nays, resulted— yeas 10, nays 32; as follows:

YEAS—Messrs. Buckalew, Cowan. Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Kiddle, and Saulsbury—10.

NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32.

ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—T.

So the amendment to the amendment was rejected.

Mr. JOHNSON. I now move to amend the amendment by striking out in line thirty three the words u having previously taken"' and inserting "at any time within ten years preceding the 1st of January, 18G1, had taken 5" so as to make it read:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who at any time within ten years preceding the 1st of January, 1861, had taken an oath as a member of Congress, &e.

I ask for the yeas and nays on this proposition.

The yeas and nays were ordered; and being taken, -resulted—yeas 10, nays 32; as follows: YEAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10.

NAYS— Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes. Harris, Henderson, Howard, Howe. Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van Winkle, Wade, "Willey. Williams, and Wilson—32.

A JjS i yXX—Messrs Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—7.

So the amendment to the amendment was rejected.

The PRESIDENT pro tempore. The question recurs on the amendment of the Senator from Michigan, [Mr. Howard,] to insert the words which have been read as the third section of the proposed article of amendment to the Constitution.

Mr. VAN WINKLE. I am induced, by a remark made by the Senator from Ohio, to make an inquiry. I understood him to say that the meaning of the last clause of this section, which clause tends to reconcile me to the whole section, is that there can only be a general removal of the disability by a general amnesty; and although he did not say distinctly that there could not be a removal of the disability in an individual case, I should like to know what is the understanding, at least of the mover of this proposition, in reference to that point. This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood. I would suggest, although I do not make the motion, that instead of "two thirds of each House" we should insert a majority of all the members elected to each House." It strikes me that it is -very difficult to get a two thirds majority unless under very peculiar circumstances on anything, and that a majority of all the members elected to each House, which is being substituted for the two thirds vote in many of our State Legislatures, would be sufficient in the present case.

Mr. HOWARD. If I understood the inquiry put by the honorable Senator from West Virginia, it was whether the latter clause in section three would not require a general act to be passed by Congress removing the disabilities in all cases. I do not so understand the clause. I understand that the clause gives to Congress full discretionary power to grant an amnesty in an individual case, when applied for, or a part of the whole. Any portion of persons here proscribed may be pardoned, or rather this disability may be removed as to any portion of them in detail or in gross. In short, I regard it as a discretionary authority given to Congress, to be exercised by Congress in individual instances, or in any other form that Congress may see fit to exercise the power. I entertain no doubt whatever th t such will be the construction that will be put upon it.

Mr. VAN WINKLE. I am entirely satisfied with the explanation; but I was induced to make the inquiry by a remark of the Senator from Ohio, who, I supposed, spoke with knowledge, that it only applied to a general amnesty. The language certainly would cover the removal of the disability in individual cases.

Mr. SHERMAN. I did not hear the Senator from West Virginia, and I beg himto repeat his statement.

Mr. VAN WINKLE. I say I am satisfied with the explanation made by the Senator from Michigan; but I had understood the Senator from Ohio while up a few moments ago to give the last clause of this amendment the interpretation that it would not be in the power of Congress to remove the disability in individual cases. I understood the Senator from Ohio to say that Congress would have the power by a general amnesty to remove this disability. The Senator spoke generally. He may not have intended to contradict the other power; and I made the inquiry to be certain on that point.

Mr. SHERMAN. I have no doubt that the larger power includes the other. The power to make a general amnesty would include the power to make an amnesty as to classes or particular individuals. I do not think there is any doubt about that.

Mr. SAULSBURY. I move to amend the amendment by inserting after the word House in the fortieth line, the words" and the President may by the exercising of the pardoning power;" so as to make the clause read:

Congress may by a vote of two thirds of each House, and the President may by the exercise of the pardoning power, remove such disability.

Mr. HOWARD. I hope that amendment will not be adopted.

Mr. SAULSBURY. I call for the yeas and nays upon it.

The yeas and nays were ordered; and being taken, resulted—yeas 10, nays 32; as follows: YCAS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, John on Norton, Riddle, and Saulsbury—10.

NAYS—Messrs. Anthony, Chandler, Clark, Conness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland. Pomeroy, Ramsey, Sherman, Stewart, Sumner, Trumbull, Van 'Winkle, Wade, Willey, Williams, and Wilson—32.

ABSENT—Me rs Brown, Dixon, McDougall, Nesmith, Sprague, Wright, and Yates—7.

So the amendment to the amendment was rejected.

The PRESIDENT pro tempore. The question recurs on the amendment offered by the Senator from Michigan to insert certain words as the third section.

Mr. HOWARD. I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. DOOLITTLE. I will state briefly why I cannot vote for this amendment as a substitute for the third section of the resolution which has been stricken out. My first reason is that by a law of Congress now all persons mentioned in this section are excluded from holding any of these offices. The oath that is required by a law of Congress to be taken by every person holding an office under the United States

Mr. TRUMBULL. Does that prevent their holding a State office?

Mr. DOOLITTLE. No; it does not prevent the holding of a State office, but it prevents them from holding any office under the Government of the United States, and that is as far as I think we ought to go. No person can be a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or military, under the United States, under the law as it now stands, who does not take an oath that he has not participated in the rebellion. The oath which we require at their hands prevents any such persons from holding any such offices. That law is upon our statute book That law will remain upon the statute book just as long as Congress in its judgment shall think best to retain it. And, sir, there is, in my judgment, no danger whatever, no apprehension, that that law will be taken from our statute book so long as the public interests require that it should there remain. Therefore, in my judgment, it is not necessary to adopt any such constitutional amendment, because this amendment contains a clause putting it in the power of Congress to put an end to the effect of this provision. It is true that it requires two thirds of Congress in order to do it, whereas under the law as it now stands a majority of Congress could change the existing law on that subject. What I maintain is this: Congress is the representative of the American people; Congress speaks the will of the American people, and I do not think that it is in accordance with our system of government, which presumes that Congress speaks for the people, to suppose that a majority of Congress will repeal this oath until a majority of the people of the United States are in favor of doing so; and when a majority of the people are in favor of universal amnesty they have a right to express that opinion and to have universal amnesty.

I undertake to say that upon no principle of statesmanship or Christianity, whether you derive your conclusions from the experience of history, the teachings of Christianity, or the teachings of a wise statesmanship, can you desire to retain in this country any considerable portion of its people who shall be under the ban of eternal proscription. What, Mr. President, is the duty of the Government, having suppressed the rebellion? It is to punish the guilty leaders under the law of the land; it is to bring them to punishment; and the duty of Congress is, if there is anything which stands in the way and which Congress can remove, to pass such laws as may expedite the trials of the great offenders. The great offenders should be tried and punished, and those that you do not try and do not punish should not be held under proscription, the unrelenting, eternal enemies of the Republic. Again, Mr. President, this provision, if it passes, will have the effect of putting a new punishment, not prescribed by the laws, upon all those persons who are embraced within its provisions. Nobody can doubt that. It is in the nature of a bill of pains and penalties, imposed by constitutional enactment it is true, but it is a punishment different from the punishment now prescribed by law. What is the effect of adopting it? What is the legal effect of adopting a new punishment for an offense which has already been committed? It repeals the old punishment, and that cannot be inflicted. If to day the punishment for the crime of murder is death, and to morrow you change your punishment to imprisonment for life, the old penalty is repealed; it cannot be inflicted upon a culprit who has been guilty previous to the passage of the law. Such has been decided by the courts many times to be the law; and if by a constitutional amendment you impose a new punishment upon a class of offenders who are guilty of crime already, you wipe out the old punishment as to them, not as to those who are not embraced within this. This only embraces a particular class of individuals who have taken an oath to support the Constitution of the United States. Now, I do not propose to wipe out the penalties that these men have incurred by their treason against the Government; but I would punish a sufficient number of them to make treason odious. I would punish the leaders, those who were instrumental in bringing on this rebellion; but to the masses I would give amnesty.

Mr. NYE. How many would you like to hang?

Mr. DOOLITTLE. The Senator himself stated the other day that five or six would be enough to hang.

Mr. NYE. Do you acquiesce m that?

Mr. DOOLITTLE. I think I ought to be satisfied if the Senator from Nevada is satisfied with five or six.

But, Mr. President, I have another objection which weighs, perhaps, still more upon my mind than those I have stated. The insertion of this section into this constitutional amendment, if these provisions are not to be submitted separately, tends to prevent the adoption of the amendment by a sufficient number of States to ratify it. You say every day that you cannot get a jury under the laws of several of the States, Virginia and others; that to day the state of public opinion is such that you cannot get a jury who would convict a person of crime, and yet you propose to submit this constitutional amendment to be passed upon by the people of those States to determine the question whether they will adopt a constitutional amendment upon a popular vote, which constitutional amendment on its face declares that all of those men who have ever taken an oath to support the Constitution of the United States are forever to be excluded from holding office under the United States or within the State unless two thirds of Congress will consent to give them the privilege.

Sir, what States will adopt it? It is possible that some one, two, perhaps three, of those States to be affected by this amendment may adopt it.

Mr. LANE; of Kansas. Four will accept that part of it.

Mr. DOOLITTLE. What four?

Mr. LANE, of Kansas. Virginia, Tennessee, Arkansas, and Louisiana. I saw some gentlemen on Monday from Tennessee, and talked with them about this particular clause, and they told me it would be the most popular thing that could be tendered. And the very men that you want to hang ought to accept it joyfully in lieu of their hanging. [Laughter.]

Mr. DOOLITTLE. The Senator from Kansas, perhaps, has information on this subject that other Senators do not possess.

Mr. LANE, of Kansas. I saw those gentlemen on Monday.

Mr. DOOLITTLE. I do not know who those particular gentlemen were. Were they the gentlemen that deserved hanging or not? [Laughter.]

Mr. LANE, of Kansas. They were conservatives from Tennessee.

Mr. DOOLITTLE. Mr. President

Mr. SHERMAN. If it will not interrupt my friend from Wisconsin I should like to ask him a question, whether there is in history an example of an insurrection of the most ordinary character terminating with no punishment to any man, no deprivation of property, no deprivation of franchise, no deprivation of any right whatever except the right to hold office; whether ever more generous terms were held out to persons who had been engaged in insurrection than are here proposed?

Mr. DOOLITTLE. I understand, then, my friend, the Senator from Ohio, to admit that adoptingthis section does away with all further punishment.

Mr. SHERMAN. No; I do not think this will prevent your hanging four or five.

Mr. DOOLITTLE. I understood the Senator by his question to admit that adopting this repeals all other penalties as against the men included within the section.

Mr. SHERMAN. Not at all. If the Senator wants to take the blood of four or five I am perfectly willing.

Mr. DOOLITTLE. Mr. President, I deem this entirely unnecessary, as I stated at the beginning. I deem it as the adoption of a new punishmeut as to the persons who are cm-„ braced within its provisions, and therefore the abolition of the existing punishment; and I deem it as tending to prevent the adoption of the amendment by a sufficient number of States to secure the ratification of the other part of the constitutional amendment. If this is to be inserted as a part of the amendment, to be submitted as a part and parcel of the whole, so that the whole must be taken together and the different sections shall not be acted upon separately, it will tend to prevent its adoption, and preventing its adoption has no other tendency or effect than to keep open this difficulty for years to come. 5

Mr. TRUMBULL. I do not suppose we shall get any vote on this matter to night If I thought so I should not take up any time; but I can hardly forbear saying a word or two in reply to the Senator from Wisconsin, [Mr. LITTLE.] They seem to have peculiar notions in Wisconsin in regard to offices, and the Senator who has just taken his seat regards it as a punishment that a man cannot hold an office. Why, sir, how many suffering people there must be in this land! He says this is a bill of pains and penalties because certain persons cannot hold office; and he even seems to think it would be preferable in some instances to be hanged. He wants to know of the Senator from Ohio if such persons are to be excepted This clause, I suppose, will not embrace those who are to be hanged. When hung they will cease to suffer the pains and penalties of being kept out of office. I recollect having seen in the newspapers—I do not know whether it is true or not; I very seldom allude to newspaper articles—but I saw in some of the newspapers -that an officer of this Government, who was supposed to control some patronage in the minor offices of the country, spoke of the officers as "eating the bread and butter of the President.'" I recollect the Senator from Wisconsin himself, in a speech some days ago, spoke of the President s officers. The President has got no officers.

Mr. DOOLITTLE. I never stated that.

Mr. TRUMBULL. The Senator spoke of their being responsible to the President.

Mr. DOOLITTLE. So I did, and that is a fact.

Mr. TRUMBULL. How so?

Mr. DOOLITTLE. They are responsible to the President.

Mr. TRUMBULL. They are responsible to the law of the land and not to the President.

Mr. DOOLITTLE rose.

Mr. TRUMBULL. Let the Senator keep cool. I undertake to say that a person holding office, who does not acknowledge his responsibility to the law and his oath of office, but to a President, is not fit to be an officer. No officer is responsible to the President, but his responsibility is to the law under which he acts. The President is not omnipotent in this country. He does not create offices; he cannot appoint an individual to the humblest office in the land except in pursuance of the Constitution and the law. He himself is responsible to the Constitution and the law, and so is the most inferior postmaster in the land. This idea that the offices of this country belong to the President, that men eat his bread ami butter. is very erroneous. Why, sir, the President feeds nobody. It is derogatory to the position of any man who holds an office to talk of his eating the bread and butter of the President and being responsible to the President and not to his oath of office, to the law and the Constitution.

Why, sir, who ever heard of such a proposition as that laid down by the Senator from Wisconsin, that a bill excluding men from office is a bill of pains and penaltiesand punishment? The Constitution of the United States declares that no one but a native born citizen of the United States shall be President of the United States. Does. then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, bcause by the Constitution he is ineligible to the Presidency? This is the Senator s position.

But he tells us that there is no necessity for this clause; and why? Oh, we have a law that excludes from office every one of these individuals. Have we? How long is it .since the Senator from Wisconsin stood up in this body and with loud voice proclaimed to the Senate and the nation that each House should judge for itself whether members should be admitted into the body, and that Congress had no right to decide upon it? Now he tells us that we have a law which excludes all these persons from office, and he does not want it In the Constitution.' How long is it since he argued and urged here that the Senate should decide for itself whether the rebellious States were fit to be represented or not? To day he tells us we have a law which prevents each House from admitting disloyal persons. I am glad the Senator is disposed to obey the law; and I trust we shall hear no more of his saying that it is for the Senate exclusively to decide, irrespective of law, whether persons are to be admitted to seats.

I know that each House is the judge of the elections, the qualifications, and the returns of its own members under the Constitution; but each House is not made the judge of whether there is a constituency authorized to representation or not. That is a question proper to be decided by the joint action of both Houses. Each House may have the physical power to decide it, but Senators have no right to vote that the representatives of Maximilian in Mexico, of Napoleon in France, or of the people of Canada, shall be admitted to seats here; and they have just as little right to admit the representatives of any other people not recognized by law as entitled to representation, as they have to admit representatives from Mexico, or France, or Canada. But the Senator says that this provision excluding leading rebels from office will not be accepted in the South. Sir, has it come to this, that the leaders of the infamous rebellion who undertook to overthrow the Government, who marshaled armies and maintained a war against it for four or five years, when put down by force of arms cannot be deprived of the privilege of holding offices? The Senator says the South will not accept it; but, sir, they have gone further than this in Maryland, in Tennessee, in West Virginia, in Missouri. Everywhere in the South where loyal men have the control they not only exclude the leading traitors from office, but also from the right of suffrage.•

Mr. LANE, of Kansas. And so in Arkansas.

Mr. TRUMBULL. In Arkansas also, Iam reminded by the Senator from Kansas. Sir, the object of this provision is to place these rebellious States in the hands of loyal men. Is the Senator from Wisconsin opposed to it? Does he want to put the control of these States in the hands of disloyal men? If lie does not, then vote for this provision. That is all there is to it, and if the time ever comes, as I trust it will, when these leaders shall be cured of their malignity toward the Union, when they shall be willing to treat loyal men and Union men fairly and justly, it will be in the power of Congress to remove the disability; and if the people of these localities are then willing to trust the repentant rebels they can elect them to office. Sir, it is. intended to put some sort of stigma, some sort of odium upon the leaders of this rebellion, and no other way is left to do it but by some provision of this kind. The Senator wants it in a law. Sir, what would it be good for in a law? So far as the members of this body and of the other House are concerned, the Constitution of the United States has provided the qualifications for a Senator and for a Representative, and it has been held more than once that it is incompetent to add to those qualifications by law. You may do it by a change of the Constitution, and hence the propriety of putting it here. The test oath is a different thing. The oath does not go to the qualification, but to the discharge of the duties subsequently, and the requirement of the oath may be constitutional when a direct disqualification imposed by law would not be constitutional.

That is a proposition, however, which I do not propose to argue at this time. I rose merely to repel the idea that it was imposing pains and penalties to deprive a man from holding office. I rose to repel the idea that the offices of this country belonged to the President and that men who held them were living upon his bounty; to show that the oath was not a sufficient protection; and that to have the proper protection against leading rebels being elevated to office, not by Union men but by the rebels, it was necessary to insert a clause of this kind. We find that every southern State which is in the hands of loyal men, although it may have been formerly engaged in this rebellion, has not only excluded from office, but from the right of suffrage also, all the leading traitors 5 and, sir, I apprehend that this proposition will be a popular provision with loyal men, and how the disloyal regard it is not a matter of so much consequence.

Mr. DOOLITTLE. Mr. President

Mr. HENDRICKS. If the Senator will yield I will move an adjournment.

Mr. GRIMES. Let us go into executive session.

Several Senators. It is too late.

Mr. HENDRICKS. If there is any business in executive session desirable to be. done, I will give way.

Mr. GRIMES. I move that the Senate proceed to the consideration of executive business. ["No, no; it is too late."]

The PRESIDING OFFICER Mr PoMERoy in the chair.) The Senator from Iowa moves that the Senate proceed to the consideration of executive business.

Several Senators. Let us adjourn.

The question being put on Mr. Grimes s motion, a division was called for.

Mr. SHERMAN. If there is any controversy about it, I move that the Senate adjourn. The motion was agreed to j and the Senate adjourned.