May 31, 1866

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H. R. No. 127) proposing an amendment to the Constitution of the United States, the pending question being on the amendment of Mr. Howard to insert as section three of the proposed article of constitutional amendment the following:

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 of 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 same, 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. DOOLITTLE. Mr. President, I thank the Senate for its kindness in postponing the consideration of this resolution last evening until the present moment. The hour was late and I was somewhat weary; and more, at the moment, from the manner and tone of my friend from Illinois, perhaps, than anything else, I confess that I felt some little degree of resentment, but that has passed. I know my friend from Illinois so well, and have known so long, that it is but just to him and myself to say that I know very well that under that tone which he sometimes assumes in debate, apparently of an er so provoking to a stranger, nothing of the kind is, in fact, intended. Sir, the moment has passed, and with it all feeling of resentment. I shall address myself to the ideas to which he gave utterance in reply to some points which I had briefly stated in objection to this amendment.

He began by saying that there were some peculiar ideas in Wisconsin, he thought. Now, I assure my friend that no ideas are prevalent there, that I am aware of, which do not prevail also in Illinois and the adjoining States. Among others, he referred to what has been referred to before, a certain statement alleged to have been made by the First Assistant Postmaster General, formerly Governor of the State of Wisconsin. It so happens that since last evening s discussion I met Governor Randall, and he authorized me to say to my friend from Wisconsin [Illinois] that the remark to which he refers is not correct, that the statement is false, and therefore those who repeat it are giving currency to a falsehood unjust to him.

Mr. HOWE. Was that remark addressed to me—your "friend from Wisconsin?"

Mr. DOOLITTLE. I meant to say "my friend from Illinois." It was my friend from Illinois who made the remark yesterday.

Mr. TRUMBULL. I believe I stated that I had seen some statement in the papers in regard to it, and I think I said I did not know whether it was true or not.

Mr. DOOLITTLE. I did not understand the Senator from Illinois to vouch for the truth of it. What I state is, that the First Assistant Postmaster General authorizes me to say that the statement to which the Senator referred as circulating is false.

Mr. TRUMBULL. I know nothing about the statement, any further than that I saw it in the papers.

Mr. DOOLITTLE. Of course I do not intend to say that what the Senator stated, that he saw it in a newspaper, is false—not at all, but that the statement circulating in reference to Governor Randall was a false statement. My friend from Illinois also made a remark in relation to what I said on a former occasion which I think was not warranted by what I said. I stated that executive officers were responsible to the President as the chief executive officer of the Government. My friend from Illinois seems to think that because I made this statement that they are responsible to the President, because he under the Constitution has placed upon him the responsibility of seeing that the laws are faithfully executed, I intended to say that these men were subject merely to the will of the Executive and not to the laws of the land. Not at all, sir. The responsibility of the Executive is to see that those men who are exercising executive functions under him faithfully execute the laws of the land.

And, sir, is that an idea peculiar to Wisconsin? I think that is a fundamental idea well understood, and has been from the beginning of the Government, that the President being the chief Executive and sworn under the Constitution to see that the laws are faithfully executed, executive officers who are under him are responsible to him in that sense that he must see that they faithfully discharge their, duties. Now, Mr. President, enough on this question which has no bearing whatever on the subject before the Senate.

Mr. HOWE. My colleague will indulge

Mr. DOOLITTLE. If my colleague will allow me to conclude, I desire to leave all these personal matters and go on simply with the consideration .of the question before the Senate.

Mr. HOWE. I simply want to know precisely what the contradiction is which is made here in behalf of the First Assistant Postmaster General. I understand him to deny the truth of a statement made yesterday by the Senator from Illinois. The statement made by the Senator from Illinois, I think, has some reference to a declaration of mine made here some time previous. I should like to know what the precise issue is. Here is one remark made by the Senator from Illinois yesterday, as printed in the Globe:

"I recollect having seen in the newspapers 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.'

Is it denied by the First Assistant Postmaster General that he has spoken of officers as eating the bread and butter of the President?" Is that the statement which is denied?

Mr. DOOLITTLE. The statement that I made was that I had seen the First Assistant Postmaster General, and that in conversation, alluding to that subject, he had authorized me to state that that rumor or statement which was circulating in the newspapers is not true, that it is false.

Mr. HOWE. The language substantially as used by the Senator from Illinois yesterday, I believe, was first introduced here by myself. I stated here that I had been told that the First Assistant Postmaster General had declared that no man should eat the bread and butter of the President unless he sustained his policy. That is as near as I remember the language. I made that statement upon the authority of a member of the House of Representatives. I met the First Assistant Postmaster General in the evening after I had made that remark. He did not call its correctness in question; but when I returned to my boarding-house, 1 found a note from him asking me upon what authority I made that statement. I replied to him, saying I made it upon the authority of the Representative of the fifth district of the State of Wisconsin, since which I have heard nothing from him or any one else questioning the accuracy of that statement until this remark was made here by my colleague.

Mr. DOOLITTLE. I have stated what he authorized me to state on that subject. Of course I personally do not undertake to state the fact one way or another.

But enough, sir, on that subject of personalities. I wish to call the attention of the Senate to the question involved in the amendment. I stated in the course of my remarks yesterday that the Oiuh which Congress required all officers under the Government of the United States to take, so long as that oath remained unrepealed by law, effected all that is effected by this amendment. It excludes those who cannot take it from entering upon any office under the Government of the United States. Of course the oath does not refer to State officers. As to State officers, this proposed but as amendment to all Federal goes officers, further the than oath that required oath: to be taken by them, that they have not engaged in this rebellion against the Government of the United States, is as effectual, so long as that law stands unrepealed, as this amendment would be.

The Senator from Illinois, in reply to this, says that it is a new doctrine in me to maintain that members of Congress should obey the laws of the land and take the oaths which are prescribed by law before they are entitled to admission; that I have contended that each House was to judge for itself of the qualifications. elections, and returns of its members; and that in that judgment each House was independent of the other. Mr. President, I have contended that each House is the judge, and the sole judge, the judge without appeal, the judge over whom neither the President nor the Supreme Court nor the other House has any rightful control whatever. But does the Senator from Illinois suppose that I ever maintained that the House of Representatives or the Senate, in making up its judgment, should violate the laws of the land? Such an idea never entered into my brain, I can assure the Senator from Illinois. I supposed that the Senate of the United States would judge according to law. Has it come to this, that because I insist that the Senate of the United States shall judge upon the elections, qualifications, and returns of its members, I have any idea that the Senate will undertake to violate the laws of the land or repeal the laws of the land? I never heard such an idea suggested by any human being. I never thought that it could enter into the mind of any human being. I have confidence in the judgment of the Senate, that the Senate will judge right, that the Senate will judge as a tribunal authorized by the Constitution to judge, and to which is given the sole judgment on that question. I think, therefore, that the remark of the Senator from Illinois, that ho was glad that I was now disposed to obey the laws, was a remark which was not called for by anything I have ever uttered on this floor or elsewhere. I am just as much in favor of maintaining the laws and the Constitution as the Senator from Illinois possibly can be, and I have always maintained the validity of this oath, under the Constitution, which was required. As to the President of the United States, his oath is specified in the Constitution; and as the Vice President, in the event of the resignation or death of the President, is to exercise the same office, the only doubt I have ever had was whether the Vice President ought not to take the same oath as the President; whether we can prescribe to the Vice President a different oath from what the Constitution requires us to prescribe to the President. That is the only doubt I have ever had, and that is a question upon which I have doubts, for the reason I have stated, because the Vice President, in a certain contingency, is to take the place of the President, and to act in his stead. But, sir, that is not a question arising here.

I maintained, further, that this proposed amendment prescribes a new punishment for an offense which has already been committed. My honorable friend says that this is not punishment; that that idea must be peculiar to Wisconsin; that to pass a law or the sentence of a court or the decree of any tribunal which shall deprive a person of an office, or which shall disqualify him forever to hold an office is not a punishment. Sir, this idea is by no means peculiar to Wisconsin. There is not a State in this Union where, in some of the criminal statutes, is not to be found, as a part of the penalty attached to the crime which has been committed, a disqualification in certain cases to hold an office; and in cases of impeachment before this body, the highest tribunal known to the laws of the land, when the judgment of this body is pronounced, it is confined by the Constitution to that very thing, removal from office and disqualification from ever holding office, after the judgment of the Senate sitting as a court of impeachment. The Constitution says: "Judgment in cases of impeachment shall not extend further than removal from otnee and a disqualification to hold and enjoy any office of honor, trust, or profit under the United States."

In the State of Illinois, in the State of Wisconsin, and other States, there are criminal statutes, in which, on the commission of certain offenses, a part of the punishment which is imposed by express statute is made the deprivation of this right to hold an office, disqualification forever to hold an office. It is part and parcel of the judgment in a criminal case. It carries that effect with it. Many of the States provide that when a person has been convicted of an offense amounting to a felony he shall not only be deprived of the right to hold office, but the right to vote as a citizen; his citizenship is forfeited. Sir, this is a penalty, a new penalty, an additional penalty imposed after the fact has transpired, after the crime has been committed. Where a new punishment is provided by law for an offense which has already been committed, unless the law which provides for it expressly saves it, the old penalty is gone. Such is the decision of all criminal courts in all States and countries. You cannot change the punishment of the offense without wiping out the old penalty, and here, sir, if you insert by way of a constitutional amendment this ex post facto provision, a bill of attainder, for it is nothing more nor less, it wipes out the old penalty, and all the penalties which attach will be the penalties which attach under this provision, unless the provision itself provides for saving the old penalty.

But, Mr. President, there is another objection to this proposed amendment as it stands. This amendment applies equally to those who were forced into the rebel service as to those who went in voluntarily. I call the attention of Senators to the fact that the men who were conscripted into the rebel service, men who were carried into it at the point of the bayonet, men who were hunted all over the States of the South by the myrmidons of this rebellion to compel them to enter the service, are just as much subjected to penalties under this amendment as those who went into it of their own free will. Mr. President, has it come to this, that in this high place and in this body, we can make no distinction between the innocent and the guilty; no distinction in favor of those men who have been hunted like wild beasts from valley to valley all over the States of the South, and forced, conscripted, compelled to go into the service against their will, but that they are to stand upon precisely the same ground with the men who were guilty of this offense from the beginning? Sir, public judgment revolts against the proposition, and the conscience and the humanity of the American people will stamp this proposition as being in violation of every principle of justice and against the humanity of the age. It is beyond belief that the Senate of the United States proposes to treat these men who have been hunted, conscripted, and forced at the point of the bayonet to go into the rebellion, as if they were equally guilty with the leaders of the rebellion.

Mr. President, I speak of the injustice of the proposition in this respect. What hope is there that a proposition like that will receive the sanction of the American people? None whatever. It ought not to receive their sanction, for it is founded in injustice, that injustice which annihilates the distinctions between innocence and guilt, between the men who have suffered, and suffered more than the men of the North have suffered; who have been conscripted, forced into the rebellion, and compelled at the point of the bayonet to do its bidding and the men who went into it of their own free will. Sir, it is perhaps predestined that this resolution must pass in this form. It has perhaps passed through one of those consultations where results are arrived at that no considerations can change. Nothing can modify it. It must be, like the decrees of fate, accomplished. But, sir, it does seem to me that this Senate ought to pause before they abolish all distinction in the southern States between those who were forced into the rebel army and those who went in of their own free will.

But. sir, there is another objection to this amendment as it stands. It proposes to annul in some cases the pardons and amnesties which have already been granted under the laws of Congress, and the proclamations of the President issued in pursuance thereof. Are we prepared to do that? Can this Congress stand before this country and the civilized world and say, "We authorized the President of the United States by proclamations to declare full amnesty and pardon upon certain terms and conditions; that amnesty and pardon has been extended; the oaths of allegiance have been taken; these men have in good faith accepted the conditions of the pardon and amnesty; and yet Congress proposes by a constitutional amendment to .annul those pardons and wipe out thatamnesty?" On what kind of principle can we stand before the civilized world and do that? That I may make no mistake I desire to read the section of the statute which authorized both President Lincoln and President Johnson to grant pardon and amnesty to those who had taken part in the rebellion. On the 17th of July, 1862, Congress enacted in these words:

"That the President is hereby authorized, at any time hereafter"—

No limitation as to time—

"by proclamation, to extend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare."

Now, Mr. President, independent of that authority which the Constitution confers upon the President -as the chief Executive to issue pardons to persons who are guilty of offenses against the laws of the United States, here is an express provision enacted by Congress, authorizing the President, as lie should deem expedient for the public welfare, to grant amnesty and pardon to those who had been engaged in this rebellion. In pursuance of this statute, Mr. Lincoln, President of the United States, in December following the passage of this law did issue a proclamation granting pardon and amnesty to persons who had been engaged in this rebellion, upon the terms and conditions therein specified. I read from that proclamation:

"Whereas in and by the Constitution of the United States it is provided that the President shall have power to grant reprieves and pardons for offenses against the United States, except m cases of impeachmentand whereas a rebellion now exists whereby the loyal State governments of several States have for a long time been subverted, and many persons have committed, and are now guilty of, treason against the United States; and whereas, with reference to said rebellion and treason, laws have been enacted by Congress, declaring forfeitures and confiscation of property and liberation of slaves, all upon terms and conditions therein stated, and also declaring that the President was thereby authorized at any time thereafter, by proclamation, toextend to persons who may have participated in the existing rebellion, in any State or part thereof, pardon and amnesty, with such exceptions and at such times and on such conditions as he may deem expedient for the public welfare; and whereas the congressional declaration for limited and conditional pardon accords with well established judicial exposition of thepardoningpower; and whereas, with reference to said rebellion, the President of the United States has issued several proclamations, with provisions in regard to the liberation of slaves; and whereas it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the United States, and to reinaugurate loyal State governments within and for their respective States: Therefore,

"I, Abraham Lincoln, President of the United States, do proclaim, declare, and make known to all persons who have, directly or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is hereby gran ted to them and each of them, with restoration of all rights of property, except as to slaves."

The conditions were the taking of a certain oath which is herein mentioned, and which it is not necessary that I should read. Now, the persons who were excepted from the benefits of this pardon and amnesty granted by President Lincoln, were as follows:"

The persons excepted from the benefits of the foregoing provi. i i are all who are, or shall have been, civil or diplomatic officers or agents of the so called confederate government; all who have left judicial stations under the United States to aid the rebellion; all who are, or shall have been, military or naval officers of said so ealled confederate government above the rank of colonel in the army or of lieutenant in the navy; all who left seat* in the United States Congress to aid the rebellion; all who resigned commissions in the Army or Navy of the United States and afterwards aided the rebellion; and all who have engaged in any way in treating colored persons, or white persons in charge of such, otherwise than lawfully as prisoners of war, and which persons may havo been found in the United States service as soldiers, seamen, or in any other capacity."

All these classes of persons were excepted from this pardon and amnesty; but the constitutional amendment now proposed to be inserted includes very many of those persons to whom pardon and amnesty were extended under the Constitution and laws of the United States by President Lincoln. Now, I ask, by what right do you undertake to annul that amnesty and take away that pardon? Is it upon the ground that might gives right, and that if by any proceeding the Constitution of the United States can be amended so as in effect to work an ex post facto attainder of men to whom pardon and amnesty have been extended, you will do it?

Mr. MORRILL. Will the Senator allow me to ask him a question?

Mr. DOOLITTLE. If it is right on this point.

Mr. MORRILL. Are we to understand the Senator to maintain that amnesty and pardon necessarily relieve from all civil disabilities, and grant restoration of all civil rights?

Mr. DOOLITTLE. I think so, undoubtedly. I think undoubtedly that where an offense is committed by any person against the laws of the United States, and the President, in pursuance of the Constitution and laws, grants full pardon and amnesty to the offender, lie is restored to his position as a citizen to all intents and purposes.

Mr. JOHNSON. The honorable member perhaps might state it in this way; one of the acts we have passed during the rebellion provides that for the offenses stated in that act a person may be indicted and tried and punished, and it provided, as a part of the punishment, for his exclusion from the right to hold office. Now, I submit to my friend from Maine whether if one has been convicted under that act, and has been adjudged to suffer that punishment, and the President then should pardon him the pardon would not remove the disability consequent upon that judgment.

The question in relation to the general effect of the pardoning power of the President has been discussed in the Supreme Court, so far as the exercise of that power concerns the obligation to take the oath which we have prescribed for permission to practice in the courts of the United States. The Senate will remember that the same oath which we take here every lawyer is required to take before he can practice in the courts of the United States. The validity of that act, as far as. counsel is concerned, was one of the questions which were argued and reargued by direction of the court at the last term; and as the two gentlemen who applied to practice without taking the oath had been pardoned by the President, another question was argued, whether the effect of the pardon was not to exempt them from the obligation to take the oath, and upon that question, I have reason to believe, the Supreme Court was divided. Certainly, from all accounts, four of the judges thought that the pardon did operate as an exemption, and one doubted; and the question is now held under advisement, to be settled the one way or the other when the Supreme Court meets; but the authorities cited have notthemin my memory exactly—went very far, as I thought, to prove that the operation of the pardon was to clear the party pardoned from the obligation to take that oath; and that upon the ground that the oath itself excluding a party from the privilege of practicing in the courts of the United States was in the nature of a penalty.

Mr. HOWE. Mr. President

Mr. GRIMES. Let me say one word.

Mr. DOOLITTLE. All this is in my speech.

Mr. HOWE. I wish the Senatorfrom Maryland, as he was giving us the state of tb e authorities on this question, would tell us whether he knows of any authority which has gone to the extent of declaring that either an amnesty or a pardon can impose any limitation upon the power of the people of the United States through an amendment of their Constitution to fix the qualifications of officers.

Mr. JOHNSON. That is not the question to which I spoke; it is quite another inquiry. I was speaking of the operation of a statute.

Mr. HOWE. But it is the question which the Senator from Maine was suggesting.

Mr. GRIMES. The Senator from Wisconsin [Mr. Howe] has hit at the very suggestion which I was about to make. It may be, and probably is, that in the case put by the Senator from Maryland, where the disability to hold future office was attached to the commission of a crime which had been proved against the party, that would be regarded as a part of the penalty; but the fallacy of the Senator from Wisconsin [Mr. Doolittle] is, that he assumes that this disability embodied in the third section is as a penalty for an offense committed. It is intended as a prevention against the future commission of offenses, the presumption being fair and legitimate that the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.

Mr. MORRILL. Before the honorable Senator from Wisconsin proceeds, I trust he will allow me a moment as I seem to have been misunderstood. I did not intend to interrupt the line of his remarks; but I did intend to bring to his mind the question whether he recognized what I regard as an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has the right to impose against persons whom it does not choose to intrust with official station. That was the distinction, and I wished to see if the honorable Senator recognized it.

Mr. DOOLITTLE. The question of the effect of the pardon upon men who have been convicted of offenses is pretty well understood by all who are familiar with judicial proceedings. We all know that if a man is convicted of felony a full pardon restores him to his civil rights. He maybe pardoned on condition that he shall not be restored to his civil rights; and if the pardon expresses that condition it is good. He may be pardoned out of the State prison on the condition that he shall leave the State. He may be pardoned out on the condition that he shall not be restored to his civil rights as a citizen, his right to vote and hold office. But when an unlimited, unconditional pardon is given it covers the whole ground. The question in regard to lawyers is altogether a different case from the case of a man who has committed an offense, because to practice law is the lawyer s business, his profession, he lives by it, and to take it from" him is to deprive him of a valuable thing. The other is a question which goes to disability as to civil rights growing out of the commission of a crime.

I have said, Mr. President, that Mr. Lincoln s proclamation specified certain persons that were excepted from the operation of the amnesty which he granted. Mr. Johnson after he became President, on the 29th of May, I860, in pursuance of the statute which I have read, and which gave him full authority to act in the case and to specify the terms and conditions upon which amnesty and pardon should be given, issued a proclamation in which lie used the following language:

"Whereas the President of th e United States, 011 the 8th day of December, A. D. 1863, and on the 26th day of March, A. D. 1864, did, with the, object to suppress the existing rebellion, to induce all persons to return to .their loyalty, and to restore the authority of the United States, issue proclamations ofiei ins amnesty and pardon to certain persons who had directly or by implication participated in the said rebellion; and whereas many persons who had so engaged in said rebellion have, since the issuance of said proclamations,'failed or neglected to take the benefits offered thereby; and whereas many persons who have been justly deprived of all claim to amnesty and pardon thereunder, by reason of their participation directly or by implication in said rebellion, and continued hostility to the Government of the United States since the date of said proclamation, now desire to apply for and obtain amnesty and pardon:"

To the end, therefore, that the authority of the Government of the United States may be restored, and that peace, order, and freedom may be established, I, Andrew Johnson, President of the United States, do proclaim and declare that I hereby grant to all persons who have, directly or indirectly, participated in the existing rebellion, except as hereinaftercxcepted, amnesty and pardon, with restoration of all rights of property, except as to slaves, and except in cases where legal proceedings, underthe laws of the United States providing for the confiscation of property of persons engaged in rebellion, have been instituted; but upon the condition, nevertheless, that every such person shall take and subscribe the following oath, (or affirmation,) and thenceforward keep and maintain said oath inviolate; and which oath shall be registered for permanent preservation, and shall be of the tenor and effect following, to wit:"'

I, do solemnly swear, (or affirm,) in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the State thereunder: and that I will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God.'"

Mr. President, the question is sometimes asked, where did Mr. Johnson, as President, get the power to prescribe any such condition as this? Here is the statute, in the twelfth volume of the Statutes at Large page in which Congress in express terms declared that he should have power to grant pardon and amnesty "with sneh exceptions, and at such time, and on such conditions as he may deem expedient for the public welfare." He deemed it expedient for the public welfare, in granting this pardon and amnesty, to require of those who accepted it that they should take that oath. He had authority, under the statute, to prescribe it as one of the conditions of the amnesty granted: and the oath is, that henceforth they will faithfully support and defend the Constitution of the United States and the Union of the States thereunder, and that they will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. There is where he got the power. At all events, if there were any doubt about, his having the power under the language of the Constitution itself, there is an authority given by Congress to him to say that if the men who had been engaged in the rebellion would take an oath to support the Constitution henceforth, and to support the proclamations emancipating slaves, they should have pardon. Sir, in addition to that oath he went further and put into the very pardons themselves which were granted to the individuals, terms and conditions there expressed.

Mr. SAULSBURY. Mr. President

Mr. DOOLITTLE. I hope the Senator from Delaware will not interrupt me. I have been very much interrupted, and have had three or four speeches interjected into my speech now. It costs too much to print a speech with the speeches of others in it. Mr. Johnson, in his proclamation from which I have read, specified the exceptions, namely:

"The following classes ofpersons are excepted from the benefits of this proclamation: first, nil who are or shall have been pretended civil or diplomatic officers or otherwise domestic or foreign agents of the pretended government; second, all who left judicial stations under the United States to aid the rebellion; third, all who shall have been military or naval officers of said pretended confederate government above the rank of colonel in the army or lieutenant in the navy; fourth, all who left seats in the Congress of the United States to aid the rebellion; fifth, all who resigned or tendered resignations of their commissions in the Army or Navy of the United States to evade duty in resisting the rebellion; sixth, all who have engaged m any way in treating otherwise than lawfully as prisoners of war persons found in the United States service as officers, soldiers, seamen, or in other capacities; seventh, all persons who have been or are absentees from the United States for the purpose of aiding the rebellion; eighth, all military and naval officers in the rebel service who were educated by the Government in the Military Academy at West Point or the United States Naval Academy; ninth, all persons who held the pretended offices of Governors of States in insurrection against the United States; tenth, all persons who left their homes within tile jurisdiction and protection of the United States, and passed beyond the Federal military lines into the pretended confederate States for the purpose of aiding the rebellion; eleventh, all persons who have been engaged in the destruction of the commerce of the United States upon the high seas, and all persons who have made raids into the United States from Canada, or been engaged in destroying the commerce of the United States upon the lakes and rivers that separate the British Provinces from the United States; twelfth, all persons who, at the time when they seek to obtain the benefits hereof by taking the oath herein prescribed, are in military, naval, or civil confinement or custody, or under bonds of the civil, military, or naval authorities or agents of the United States as prisoners of war, or persons detained for offenses of any kind, either before or after conviction; thirteenth, all persons who ha vc voluntarily participated in said rebellion, and the estimated value of whose taxable property is over twenty thousand dollars; fourteenth, all persons who have taken the oath of amnesty as prescribed in the President s proclamation of December 8, A. D. 1863, or an oath of allegiance to the Government of the United States since the date of said proclamation, and who have not thenceforward kept and maintained the same inviolate: Provided, That special application may be made to the President for pardon by any person belonging to the excepted classes; and such clemency will be liberally extended as may be consistent with the facts of the case and the peace and dignity of the United States."

These were the terms of amnesty and pardon which were proclaimed by the President, in pursuance of the express statute passed by the Congress of the United States. Now, sir, this amendment proposed to the Constitution embraces large numbers of persons to whom pardon and amnesty have already been given. I know it may be said that by an amendment of the Constitution of the United States, which is the supreme law of the land, you can annul all existing rights. You could, perhaps, by an amendment to the Constitution of the United States, enact a provision which would deprive individual citizens of their property, and vest the whole of it in the government of a State or in the Government of the United States; you might, perhaps, by a constitutional amendment, pass a bill of attainder by which certain men should be sentenced to death and to corruption of blood; but, sir, would it be right? That is the question. Where men in good faith have taken this oath and accepted the terms of this amnesty and pardon, is it right to undertake, by a constitutional amendment, to rob them of this vested right? Sir, I have never been taught to believe that might was right, or that such a provision would be right because we had the power to pass it. I maintain that good faith, the good faith of this Government which was pledged by the Congress of the United States, and the President acting under the authority of Congress, requires us not to undertake to destroy or take away the rights which we ourselves have vested. Our honor is involved in it, and we cannot, as honorable men, it seems to me, undertake to annul what we ourselves have given and they have accepted in good faith.

While upon this subject of pardons, as so much has been said from time to time of the numbers of pardons that have been granted, I beg leave to state from a paper which I hold in my hand, furnished to me, and which I believe to be correct, that there still remain unpardoned, liable to trial and to conviction and punishment among the chief leaders of the rebellion, one hundred and thirty major and brigadier generals, eighty eight members of the confederate congress, so called, one hundred and fifty eight ex United States Army officers, and one hundred and twenty two ex United States Navy officers, who left our service to join the rebellion, and of the prominent rebel officials, like cabinet officers and governors of States, thirty seven In all five hundred and thirty five of these principal officers remain unpardoned. They are in the hands of the law, liable to be tried, certainly all the civilians at least. As to major generals and brigadier generals who surrendered, the terms of the surrender may control the good faith of the United States on the question of their trial, conviction, and punishment.

Mr. President, to this amendment I object also because it assumes on the part of the Constitution of the United States to fix the qualifications of those officers who hold offices under the State governments. If it were confined to officers under the United States, to Senators and Representatives in Congress, and to all persons holding office under the Government of the United States, I could well see the propriety of the United States prescribing the qualifications of their own officers. But when you go beyond that and undertake by the Constitution of the United States to prescribe the qualifications of officers under the laws and constitutions of the States, it seems to me you are interfering with a question which belongs to the people of the States. In the States of Tennessee, Missouri, Maryland, and West Virginia the people have assumed to pass upon the question for themselves. They prescribe the qualifications of those who shall hold offices under their State governments. I think that is a matter which belongs to the people of the States.

I stated yesterday that in my judgment one of the great dangers to be apprehended from inserting this proposition as a part of the constitutional amendment to be submitted would be to prevent the adoption of the residue of the amendment, for I understand this proposition to be to submit all these sections together as one amendment, although there are five or six sections, the subjects matter of which are entirely distinct. The proposition seems to be to submit them all together, so that if there is one section which three fourths of the States refuse to sanction, all will be lost. I think that certainly if this amendment is to be pressed in its present form each section should be submitted in so many distinct and independent articles so that if any article were adopted by three fourths of the States, that article could become a part of the Constitution. For instance, that article which forbids the assumption of the rebel debt and that article on the subject of the basis of representation might be adopted, when this, from the form in which it stands, would not be able to command the assent or ratification of three fourths of the States, and therefore all might be lost.

Now, Mr. President, I confess for one that if constitutional amendments are to be submitted 1 desire that they should be submitted in such a form that they will be adopted. I want this thing closed up, not kept open forever. If these amendments are submitted in such form as not to receive the sanction of three fourths of the States, where are we? Still in a state of quasi war. I think that this clause which is now proposed to be inserted in the amendment, instead of tending to reconstruction or restoration, has a tendency to obstruct the very thing at which all aim or should I am just as liable to be mistaken as aay other person; but it is my deliberate opinion that if on the first day of this session we had admitted into both Houses of Congress those gentlemen who came here and who were prepared in good faith to take the oath which we require to be taken, we should this day be in a much better condition than we are now. I believe that if these men who could take the oath had been admitted, and those who could not take it had been sent home, the people of those States would have found men who would take the oath, there would have been Representatives from many, if not all, of the States, by this time, and we should have presented the. spectacle of a united people, the United States, not the disunited States, not a condition of quasi war, a moral warfare, a condition in which we hear from one end of the session almost to the other continual denunciation and vituperation, and which does not tend to peace, does not" tend to restoration or the harmony of the States.

I believe, sir, that these men would have been able in all these States to have built up a powerful party to support them if we had taken them by the hand, countenanced them, and given them the moral support of Congress and of the Government. But by our treating them as if they were like rebels themselves we discourage them and discourage the men who stood with them. I have no doubt of another thing, that if this day the Representatives from all these States who could take the oath of allegiance were in Congress, speaking the voice of a united people to the civilized world, our bonds would stand at ten per cent, higher than they do to day I have no doubt of another thing, that had all these States been represented by loyal men taking the oath of allegiance, joining with us heart and hand to speak the united voice of the American people, Maximilian would have left Mexico before now.

Sir, did you not read the speech of Roebuck in the British Parliament the other day, the man who from the beginning hoped for the dissolution of the Union, labored for it, denounced the English Government for not interfering to aid the South to dissolve the Union?

Mr. CONNESS. I believe, if the Senator will permit me to say it, that he uses the term, applied to our country, of "disunited States." I think he does.

Mr. DOOLITTLE. I say that is the position in which you place us and have endeavored to place us from the beginning and from before the beginning of this Congress, while I have struggled to place us in the position of the United States, speaking one voice, rallying under the same flag; and I repeat it here, without twenty five stars on it, either. Our national salute is thirty six guns, not twentyfive; our flag bears thirty six stars, the representatives of thirty six States of the Union, not twenty five And, sir, placed in that position, how much better should we stand before the nations of the earth. Roebuck would not rise in Parliament to say,' 'Wait a little longer; the war is not yet overthe States are still separated; they are denouncing each other; there is danger of a new civil war breaking out."

Mr. President, I say, as I said before, that I claim, no more weight for my opinion than belongs to any other person; but this is the light in which[ look upon the situation. This is the danger which is impending over us now, that we are endeavoring to put into this constitutional amendment that which, instead of tending to peace, tends to obstruction, tends not to restore but to keep separated.

I had no intention of detaining the Senate at so much length; but I wish to move an amendment to this proposition. After the words "shall have" and before the words "engaged in insurrection or rebellion," in line thirty seven I move to insert the word "voluntarily." I shall also propose in the same section, after the word "thereof" and before the word" but," in line thirty nine to insert" excepting those who have duly received pardon and amnesty under the Constitution and laws, and will take such oath as shall be required bylaw." My first amendment is to insert the word "voluntarily," and on that I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. DAVIS. Mr. President, I do not propose to debate at this time the subject of the proposed amendment to the Constitution of the United States; but I will make a single remark in support of the view taken by the honorable Senator from Wisconsin in relation to his proposition to exempt from the effect of the amendment now pending all the persons who were forced involuntarily into the confederate service. I am somewhat surprised that a proposition so just, so humane, and so politic as that should not receive the unanimous sanction of the Senate. We all know that coercion and a power of compulsion to do a criminal act, which cannot be resisted by the party who is guilty of the act, exempts from culpability and punishment. If that be a true principle in relation to crimes that strike at the peace and welfare of society, and which crimes are supposed, and in fact do generally, import a high degree of moral turpitude, how much more forcibly ought such a principle to be applicable to this proposed amendment to the Constitution. We know, as a matter of public history, that in some of the confederate States there was a universal conscription of every man who could carry a gun. In one of those States, at least, it swept through all classes, from boys of sixteen to men of sixty years of age. These men were not allowed to choose whether or not they would enter into the camp and into the army of the rebellion. The whole country was hunted over to find every man who was capable of bearing arms, and, without regard to his own judgment or his own disposition to enter into the rebellion or to keep out of it, he was forced by a resistless power to become a conscript in the rebel army. There were feeble old men and immature boys who were in great numbers thus forced into the army of the confederate States. Is there anything of justice, much less of policy and statesmanship, that requires that all those soldiers of the rebel army should be inexorably punished? Notwithstanding the position assumed by the Senator from Illinois, that a disqualification for office is no punishment, I maintain that it is a punishment, and a grievous punishment, and such as a great and generous nation, or the representatives of a great and magnanimous people ought not to impose upon such a number of persons. I suppose that if the honorable Senator from Illinois himself was to come in a class, in the form of an amendment to the Constitution, that would exclude him during his life time from office, he would regard it as some punishment. It is punishment, and punishment of the most grievous and dishonoring character, for a man to be excluded from taking part in the Government of his country by filling such an office as those authorized to fill them might call him to the discharge of the duties of.

But, Mr. President, there is another idea connected with this subject that has been forced on my mind. We know from the public prints and the history of the rebellion that late in the war about one third of the armies of the rebels deserted and abandoned their camps and their banner. That was an enormous desertion, and it could only have resulted from the fact that the greater proportion of them were forced into the service and were required to fight for a cause against which they were opposed in principle and sentiment and if left to their own free will would never have entered. This prescriptive amendment is to operate inexorably upon those who willed to go into the confederate service as well as those who were involuntarily, and by a force which was resistless by them, compelled to go into it. It embraces and proscribes during their lifetime those who were involuntarily forced into the service and who abandoned it and deserted it on the first opportunity, as well as those who went into it with a free and deliberate will, and continued in it to the end. In the language of the honorable Senator from Wisconsin, what will a civilized world think of the justice and humanity, much less of the policy, of such a proscription as this? If the object of its friends was to prevent perpetual reunion and a return by the rebel States to loyalty and to true fealty to this Government, it seems to me this would be one of the most effective measures that they could devise to produce such a state of things.

I rose, Mr. President, not to enter into this debate, which I expect to do at a later period of it, but simply to urge this single consideration in support of the humane and just and statesmanlike proposition that the honorable Senator from Wisconsin has offered as an amendment to this section of the proposed amendment to the Constitution.

Mr. WILLEY. Mr. President, it is a matter of indifference to me whether the amendment proposed by the honorable Senator from Wisconsin be adopted or not. My impression is that if it should be incorporated into the proposed constitutional amendment it will emasculate it pretty effectually, and that the practical result will be that you will find in the end very few individuals who ever entered into the rebellion voluntarily. A few of the more prominent, of course, could not escape; but it would be almost impossible to prove in the southern States, where there would be a general disposition to evade the fact, that any person who has not been very prominently engaged in the rebellion had ever entered into it voluntarily. Indeed, if I understand the argument or affidavit of Mr. Stephens, made before the committee of fifteen, I take it that his plea is that he never entered into the rebellion voluntarily.

But, sir, I did not rise so much to say anything upon the amendment offered by the Senator from Wisconsin as to reply to the argument of the Senator from Kentucky, which is but a reiteration of the argument of the Senator from Pennsylvania [Mr. Cowan] the other day, and of the repeated arguments of the Senator from Wisconsin, [Mr. Doolittle,] that this amendment is vindictive in its character: that it is ex post facto in its nature; that it is designed as a punishment for the crime of treason. I utterly deny that such is the philosophy of the amendment, or that such can be said properly to be the intention of the amendment. It may, in its results, operate as a punishment, as an odium, as a disgrace upon the parties to whom it shall apply; but, sir, what is the purpose of this amendment? I will state what I understand to be its purpose. It. is not to punish the men who engaged in the rebellion for the crime which they have committed; the law in that respect is ample now; but, not being penal in its character, it is precautionary. It looks not to the past, but it has reference, as I understand it, wholly to the future. It is a measure of self-defense. It is designed to prevent a repetition of treason by these men, and being a permanent provision of the Constitution, it is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare to commit it. It is therefore not a measure of punishment, but a measure of self-defense; and the honorable Senator from Wisconsin was, in point of fact, driven to that conclusion at last by the interrogatory propounded to hiin by his colleague; and then he asked, in consideration of the amnesty proclaimed by Mr. Johnson and of the legislation of Congress on that subject, would it be just, would it bo right to incorporate such a provision as this in the Constitution of the United States, excluding these men hereafter forever from holding office?

Now, sir, is it right? The duty of the Government and the citizen is reciprocal; the obligation is mutual. The Government owes to its citizen protection; the citizen owes to the Government obedience and support; and I demand to know of the Senator from Wisconsin, or any other Senator, whether there is in the annals of history the case of a Government so benign as has been that of the United States, and where the obligation on the part of the Government has been so perfectly performed and so adequately extended? l Do Senators pretend to say that the men disqualified by the proposed amendment rebelled because they had any just cause to rebel, any just cause of complaint on the part of the Government; that it had failed to afford them the protection that was due from the Government to them? Do Senators pretend to say that there was the shadow of a pretext to justify these men in going into the rebellion?

Then, sir, if they cannot answer these interrogatories in the affirmative, as I know they cannot, and will not dare to do so, how does the case stand? Here was the Federal Government extending to these men ample protection. What did they do? Yield to the Government the support that was due from them to the Government? No, sir; not only did they withhold support from the Government, but they drew the sword to destroy it. And now, sir, the proposition is, shall these men, who have thus forfeited their allegiance and shown how unfaithful they could be to the most benign Government in the world, be allowed again to become the depositaries of the political power of the United States, the custodians and executors of our laws and liberties? Would there be any justice or any propriety in allowing men to be again introduced into the Government who have, under such circumstances as these, shown themselves to be so faithless to their trust? That is the question; and looking to the future peace and security of this country, I ask whether it would be just or right to allow men who have thus proven themselves faithless to be again intrusted with the political power of the State. I think not; and upon that ground I think this exclusion is wise, is just, is charitable, and is Christian, and that we would be faithless to our trust if we allowed the interests of the country and its future peace and welfare to be again disturbed by men who have shown themselves thus faithless in the past. And, sir, it does seem to me that there is a degree of presumption in men who have hardly yet washed their hands of the blood of our fellow citizens that they have shed in theirinsane efforts to destroy this Government, coming here and clamoring at the door of Congress again for the very political power which they have hitherto used for the destruction of this Government.

You may say they will do us no harm by being again% allowed to hold office. How was it in the origin of our troubles? How was it when these men were in office before the rebellion commenced? How did they use the power that was intrusted to them? I answer, by sending our vessels away from our shores; bytransferringour arms from the North to the South; and by depleting the Treasury of the United States by preconcerted arrangements, so that when the rebellion should be precipitated upon the country the power of the Federal Government would be crippled and to a great extent destroyed. Shall we again trust men of this character, who, while acting under the obligation of the oath to support the Constitution of the United States, thus betrayed their country and betrayed their trust?

I hope, sir, that we shall hear no more outcry about the injustice, the inhumanity, and the want of Christian spirit in thus incorporating into our Constitution precautionary measures that will forever prohibit these unfaithful men from again having any part in the Government. They have 110 moral right to it; they have forfeited it by their past conduct. If, hereafter, they shall show works meet for repentance, and that they are to be relied upon, this provision contains within it the means by which the disability may beremoved, and they may be again allowed to participate in the political administration of the Government.

Mr. DAVIS. I will say a word in notice of the remarks of the honorable Senator from West Virginia. He and myself and the honorable Senator who now occupies the chair [Mr. Harris] are lawyers. We have read of the atrocious penal code of England, and the number of crimes that are punishable there by death and by transportation. We have read also of some of the benignant principles of law that characterize the administration of the penal code of England; and among those principles is this: it is better, says the law, that ninetynine guilty men shall escape punishment than that one innocent man shall be punished. But the honorable Senator, in the benignity of his nature, reverses the humane spirit of that maxim of the law, and lest some men, under the pretext of having been involuntarily forced into the military service of the rebellion, should escape, he is anxious to have them all punished, guilty and innocent. That is about the spirit of his remarks. In the administration of this penal code of England, as it has been transferred to the United States and to all the States of America, what is the instruction rendered, I suppose by yourself, sir, if you ever presided in a criminal court, and certainly by every judge in America who has presided in a criminal court?

"If, upon a review of the whole case, you have reasonable doubt of the guilt of the accused, it is your duty to give the accused the benefit of that doubt, and to acquit."

Mr. WILLEY. The honorable Senator will allow me to say that he totally misinterprets my remarks. The point of my remarks was to show that the guilt or innocence of the party was not the matter at issue; that we were not trying them for their crimes, but we we e providing security for the future peace of the country.

Mr. DAVIS. The honorable Senator is an American citizen; he is a patriot; he is a Senator; and in addition to that he is a professor of the Christian religion, a follower of the lowly and humble Redeemer, whose death was given to expiate the sins of a fallen and a wicked world. What is the spirit that is taught to him by his Great Teacher? You say forgive your enemies; you say turn your other cheek to the man who smites you. You are taught benevolence and philanthropy and forgiveness by the precepts of the religion which the honorable Senator professes, and of which, I have no doubt, he is a very exemplary member; but it seems to me that he forgot all the spirit of his Christian charity and faith in the tenor of the remarks which he made.

The honorable Senator stated another principle to which I fully subscribe. It was this: that the duty of protection by the Government and the duty of obedience to the Government are mutual. It is the duty of the citizen to obey the law; and it is the duty of the Government to protect the citizen and to enable him to perform his obligation to obey the law. Now, sir, what has been the condition and what was the condition of things at the commencement of this rebellion? In the State of Tennessee there were two issues before the people submitted to the aggregate vote of the State. The one was whether the State would call a convention even to consider the subject of secession, and the other was whether the State would secede. On the first issue there were nearly fifteen thousand votes of a majority of the people of the State of Tennessee against the calling of a convention; and upon the question of secession there was a majority of upward of fifty six thousand votes in that State against it. How was it in the State of Virginia, the Senator s own State? There was a large majority of the people of Virginia against secession, and that majority was demonstrated by an actual vote at the polls of the people. Now, apply the principle of the honorable Senator. Here was a majority of fifty six thousand people in the State of Tennessee, and a majority of from twelve to fifteen thousand loyal people in his own State. They expressed opposition to secession at the polls. What was the duty and the obligation of the Government, according to the honorable Senator s own maxim and according to the universal maxim of justice and humanity as between governors and governed? These people were anxious to adhere to the Union, to perform their duties loyally as citizens. They expressed that disposition and purpose in the most solemn manner, and in the State of Tennessee by an overwhelming vote; According to the honorable Senator s maxim—a principle to which I yield my hearty assent, and to which no justand humane man can offera dissent—the Government of the United States ought to have upheld, supported, and protected this fifty six thousand majority in the State of Tennessee in their wish and purpose to adhere to the Union; and so of the Senator s own State. Did the Government of the Union perform its obligation to the people?

The Senator asks triumphantly, was there ever a Government, in the world, since t e commencement of time, that so perfectly andfully discharged all its obligations to these people who went into the rebellion? Sir, I say that at that great crisis, at the time when the question of loyalty and disloyalty was to be effectively and finally decided, the Government was in flagrant default. It was not in the act of protecting the majorities in those States and the people in the other southern States who were opposed to secession in their position of fidelity to the Government. None of the honorable Senator s zeal, none of his eloquence, none of his vehemence of declamation against these rebels can shake the truth of that position. The true and loyal men who constituted large majorities in many of the southern States were abandoned, or, if they were not abandoned, they were left wholly without defense and protection by the Government that he wants now to oppress them. Sir, I tell the honorable Senator, and it is the truth of the case, that before the Government of the United States can hold these men rigorously to the charge of treason, to the consequences of treason and rebellion, to its forfeitures, its punishments, and disabilities, he and those who favor such a policy ought to be prepared to demonstrate beyond question that the Government performed its duty fully and effectively toward these people. That cannot be done. It was not the fact.

Then I assume, upon the gentleman s own principle and the fair deductions from it, that every man who was willing to remain faithful to the Government of the United States, provided he had received such protection and support from the Government as would have enabled him to maintain that position, ought to come under the benefit of the reservation, the exception of the honorable Senator from Wisconsin. If there is any doubt in discriminating the guilty from the innocent, those who ought to receive the immunity from those who ought not to receive it, I, to save the innocent, would give it indefinitely to all, just as the benignant principle of the common law of England declares that if there is a doubt, the accused shall receive the benefit of the doubt, and that it is better for ninety nine guilty men to escape than that one innocent man should be punished.

But, Mr. President, I do not intend at this time to enter into a discussion on this subject. I shall avail myself of the right which the honorable Senator from Wisconsin said he would. At a future time, in the progress of this debate, it is my purpose to enter into it, and to enter into it with more fullness and detail of principle and of fact than I have attempted upon the present occasion.

Mr. SAULSBURY. It is not my intention now to enter into the discussion of the details of this proposition. I intend to do so before the debate closes. The immediate question before the Senate, as I understand, is to insert after the words "shall have,"’ in the thirtyseventh line of this third section, the word "voluntarilyso that it will read:

That no person shall be a Senator or Representative in Congress, or elector of President and VicePresident, or hold any office, civil or military, under the Government of the United States, or under any State, who, having previously taken an oath, as a member of 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 voluntarily engaged in insurrection or rebellion against the same, &c.

The proposition is to insert the word "voluntarily." It is objected to, I understand. Upon what ground? I should like some gentleman to answer the question, upon what ground do Senators object to the insertion of the word" voluntarily?" If am compelled to do a thing against my will, if I cannot avoid it, shall my involuntary service be imputed to me as a crime? Sir, has not the spirit of vengeance gone far enough? Are you not satisfied with visiting punishments upon voluntary acts, but will you also visit them upon involuntary and unwilling acts? I read in the newspapers that we live in the nineteenth century, the Christian age, illuminated from the great East; that we receive our instructions in religion, morals, trade, and everything else from New England: and yet one of these modern doctrines and modern teachings is this, that involuntary acts are to be punished 1 That is the direct proposition before the American Senate; and when an amendment is seriously offered providing that men who have been constrained by force to enter into what you call the "rebel" service, shall be exempted from criminality, a star arises in the East, though it may not be over the plains of Bethlehem, and though it may not be heralded by the angelic voices which sang "peace on earth, and good will to men," proclaiming, "Though you may have been constrained and forced to enter that service, yet you shall be punished." That is the enlightenment of the nineteenth century! That is Christian sentiment as expounded by New England!

Mr, President, I am surprised at my friend from West Virginia. No man has a greater respect for him personally, and for his character as a Christian gentleman, than myself. I have heard him upon the platform inculcating the precepts of the Christian religion. I profess, myself, nothing of the kind. I only wish I possessed it. But he advocates, as I understand, not only that a voluntary criminal act shall be punished, but that an act done involuntarily, against the will—that is the meaning of it—by compulsion and per force, shall be visited criminally.

Mr. WILLEY. No, sir; the Senator is mistaken.

Mr. SAULSBURY. Explain the word "voluntarily" then, which is the word it is proposed to insert.

Mr. WILLEY. Does the Senator ask me to explain it, or will he allow me to explain it?

Mr. SAULSBURY. Certainly.

Mr. WILLEY. I wish to state, Mr. President, most distinctly, that I exclude the idea of punishment utterly from this amendment. It is not the philosophy of the amendment; it is not the principle upon which it is founded. I am not discussing the matter whether it is criminal or not. I only say that this is a precautionary, not a penal measure, looking to the future, not to the past; but that in looking to the future, and in providing for it, it is very right and proper to look to the past, to sea whether we may trust men in the future who have been faithless in the past.

Mr. SAULSBURY. Before I proceed to reply to the remarks of the honorable Senator I will state that I was surprised yesterday to hear the honorable chairman of the Judiciary Committee say, in the discussion of this question, that this section was not one which inflicted pains and penalties. He said that no case could be found, that no authority could be cited for that position. I did not interrupt him at the time, but I will say now, before I proceed to reply to the honorable Senator from West Virginia, that if the honorable Senator from Illinois, who is chairman of the Judiciary Committee, had looked into the case ex parte Dorsey, reported in 7 Peters s Alabama Reports, lie would have found the whole doctrine explained. It was a case into which I had occasion to look many years ago. He there would have seen this whole doctrine of what pains and penalties are in a legislative act, or in a constitutional prohibition.

Without arguing that question I come back to my friend from West Virginia. He has not answered what I said. He only says that lie means something in the future; he does not mean anything that has transpired. Now, sir, what does this provision mean? Does it not mean, is it not intended to apply, to that which has transpired? Are you going, and is that the object of your legislation, to provide for some contingency in the future? Is it not apparent to everybody, does not everybody know that this is not a measure to have an operation infutu ro but itis a measure to have an operation in prcesenti, to apply to existing cases?

Then, sir, I return to my original suggestion, and I call upon my honorable friend from West Virginia, or anybody else, to assign a reason why it is that when a man is compelled to do an act, when he has no freedom of choice, he shall be punished for doing it. The proposed amendment .only exempts from the consequences of this section those who have involuntarily done these acts. And yet, sir, we here in the year 18G6, which has been illuminated by the fulminations which have come up from New England and the northern pulpits, the enlightenment which has been spread all over this continent, that an involuntary act, an act done against the will, contrary to the choice of the individual, is to be visited with highly penal consequences. That is your Christianity; that is your morality; that is your civilization; and on the floor of the Senate of the United States gentlemen who are known in the Christian world as rostrum monitors in behalf of what are called Christian principles, are found advocating such a doctrine. I say these things in no disrespect to the honorable Senator from West Virginia. He knows that. But, sir, the spirit, the animus of the proposition, is only the spirit, the animus that characterizes the entire legislation of Congress at the present time.

Six years ago we were a happy, united people. No people on the face of the earth in so short a' time had ever so rapidly increased in numbers and grown in power. From thirteen feeble colonies we had grown to be thirty odd great States. Our flag floated from ocean to ocean and from Lake to Gulf. Upon every mountain top that flag was planted, and in every valley anthems of praise to this glorious Union were sung. The burdens of Government were unfelt by the humblest and by the highest citizen. We were at peace among ourselves and at peace with all the world. In those days there were some exceptions. In certain quarters of the country the Sabbath was desecrated and the pulpit dishonored by talking of grievances which nobody experienced. A remedy was sought, and the great Republican party was brought into existence to remedy those evils. It came into existence. From 1787 till 1860 we had advanced as no nation, as the history of the world will show, ever did advance. We were happy, prosperous, and free. The party to which my honorable friend from West Virginia now attaches himself, and to which in former years I believe he did not belong, was to remove some imagined evils. It came forward and triumphed, and what have been the fruits of its triumph? A dissevered Union; a war lasting for four long years; a public debt of 4 000 000 000 every household draped in mourning; and every eye bathed in tears. That is the consolation that they have brought to us; that is the remedy they have afforded us. And yet, sir, in the pride of power and in the audacity of supposed superiority, they turn upon us, who have faithfully and consistently stood by the Union of these States, and we hear, hissing from their voice, as the words issued from the mouth of the serpent that uncoiled itself among the flowers of Eden, "copperhead," "rebel sympathizer."

Mr. President, I have said more than I intended to say; but before this constitutional amendment is finally disposed of I propose to discuss certain questions here. I know what will be said about it in certain presses of the country. I never read one of them under any circumstances, and do not care what they say; but I know they will apply these epithets to me. But, sir, before this joint resolution is finally disposed of I propose to discuss certain questions. I will state the questions that I propose to discuss, and gentlemen who take exception to them may as well look up their authorities. I say that whenever a government de facto is established, although there may be a government dejure, every person yielding obedience to the government de facto is excused, not to be punished for it; he is no traitor, and he is not liable to be hanged nor quartered. That is one question. I propose to discuss another question, without stating my opinion now with reference to it: whether any man in what was called the confederate States who acted under the authority and by compulsion of that government, can be visited with punishment. My opinion of it may be inferred from the statement of the proposition; and let me say to my friends on the other side that if they propose to combat these principles, they had better be prepared with the authorities. The principle I have just mentioned is not only founded in law, but it is founded in the teachings of the fathers.

Why, sir, you are drawing a great bill of indictment in this proposition against a whole community, indicting them all as criminals, rebels, and traitors. The thing is abhorrent to the instincts of humanity. What, sir, indict a whole community, simply because there is an imaginary line between them, as guilty of treason; that they are all traitors, ail criminals. The thing is impossible. How would you feel, sir, how should I feel, if a gentleman south of the Potomac, that we believed to b e a gentleman, should come and extend to us his hand V Would we not take it? If we took it would we not take it as a gentleman? If we believed that he was a traitor, that the crime of treason was upon his soul, the greatest crime known to the law, would we take his hand? Would you, sir? No, you would spurn it, and so would every honest man.

I know that the sentiments that I entertain and the opinions I avow are unpopular; but what do I care about that? The office of a man intrusted with public position is as much to make public opinion as to be governed by it. If he discharges his office correctly and honestly, though for the moment the discharge of that duty may be unpopular, it will not be long before the public voice will say that he is right. The great difficulty in this whole case has been that there has been a clamor in one section of the country against a subdued and fallen foe, and it is popular to cry out for blood and vengeance, and legislation is being shaped in conformity to that demand of an excited public opinion. I choose to say, for one, I heed not the clamor. Let it come with the whirlwind's power; let it come in the tornado's blast; let it come in the earthquake s shock; I stand unmoved amid the clamor for blood and vengeance. I heed it not. I will not listen to it. It is the voice of error; and it will not be long before the American people, North and South, will awaken and listen to the voice of reason. This cry for blood and vengeance cannot last forever. The eternal God, who sits above, whose essence is love, and whose chief attribute is mercy, says to all His creatures, whether in the open daylight or in the silent hours of the night, "Be charitable; be merciful."

But, sir, let me make another remark in reference to this matter. It will be misinterpreted, I know. My motives will be misinterpreted. My position will be misinterpreted. No man will misinterpret it to my face. It is this: recollect that south of the Potomac upon which your amendment is to operate there is a country extensive enough for more even than one empire. It is inhabited by millions of people. They are men who have honestly engaged in resisting your authority, as you have honestly maintained your authority. By the force of arms you have overcome them. They have yielded to that power against which they could not contend. But, sir, there are hundreds and thousands and millions of women and children there who have had nothing to do in what you say was an unlawful resistance to your authority. You tax all those people. You do not allow them a voice upon this floor. They are unheard. They cannot say a word. They have no representation here. If the eternal God was to send an archangel from heaven to plead their cause I do not believe he would be heard in legislative halls. I say that with no disrespect to the Senate. I am only speaking with reference to the spirit of the times. Your legislation affects that great class of people. Taxation without representation is abhorrent to every American mind. The denial of representation caused your fathers in revolutionary times, feeble as they were, to appeal to the God of battles for the arbitrament of the contest. And yet, sir, with all their lessons before us; with the illustrious example of George Washington; with the example of the noble men who signed the Declaration of Independence, pledging their lives, their fortunes, and their sacred honor to maintain their declaration that taxation without representation was a principle to which no freeman could submit, you exclude from your halls of legislation eleven of the States of this Union, twenty two Senators from this Chamber; and in their absence you propose to pass and to submit to them a constitutional amendment.

Mr. President, if they are not fit to be represented here, are they in any sense fit to have such a proposition submitted to them? They are either in the Union or out of the Union. If they are in the Union, the Constitution says that every State shall be represented by two Senators upon this floor. They have elected their Senators; they have presented themselves here; but you say they shall not be admitted; and yet in the face of your own act, and in violent inconsistency with your own act, you propose to submit to them a proposition to amend the Constitution of the United States. I ask you, sir, if they are not in a condition to be represented upon this floor, are they in a condition to have a proposition of this kind submitted to them?

The only proposition that I have seen in Congress—I will not refer to the proceedings of the other House—which is consistent with congressional action is the proposition of a gentleman from Pennsylvania, from the city of Lancaster, by the name of Tiiaddeus Stevens. He treats them as out of the Union, having no part or parcel in it, and lie proposes to govern them as districts and sections of country subject to the authority of the United States, but not being part or parcel of it. While I think that proposition is perfectly untenable, yet viewing your legislation in the light in which I conceive it, I say he has interpreted the whole theory of the system. I have no respect for him as a legislator, and do not know him as a man.

Now, sir, is it possible that there are three men on the floor of this Senate who honestly believe that the people down South are all traitors? The law says that treason is the highest crime that can be committed; but, sir, the instincts of your nature, acting responsively to the teachings of the law, tell you that those who have acted in obedience to a de facto government are not guilty of treason, and though it may be improper, though it may be imprudent I have been sometimes told by my friends that I do not always weigh my words now avow on the floor of the American Senate that you may arraign before a just court and an impartial jury as many of these southern gentlemen as you please who, after their States had seceded, yielded obedience to the government de facto over them, and you never can convict them of having committed any crime. For twenty years[ have studied the law, and I have studied it that length of time with but little effect if I am not certain in the conclusion to which I have arrived. At the same time I may say, to prevent misrepresentation, and it is well known that while I have been opposed to the acts of the past Administration, and to many of the present 1 never sympathized with the movement of these southern gentlemen.

The time has gone by to apply to the Democratic party or myself the epithet of" sympathizer with the rebellion." I state my opinions as I honestly entertain them; and when legal questions are presented, and not only legal questions but questions underlying the very science of government itself, which have been discussed by such great luminaries as Burke in the British Parliament, and by all the able writers upon international and municipal law, I may avow a concurrence in their opinion without subjecting myself to remarks prejudicial, not to my loyalty—a word that I do not know the use of in a republican form of government—but prejudicial to my devotion to the Constitution and the Government of the country under which I was born and hope to die. I seek controversy with no man; I avoid none.

The PRESIDENT pro tempore. The Senator from Wisconsin asks that the question, when taken upon the amendment to the amendment, may be taken by yeas and nays.

The yeas and nays were ordered.

Mr, HOWARD. I wish to make a single observation.

Mr. JOHNSON. If the honorable member proposes to debate the question at any length I hope he will give way to a motion to adjourn.

Mr. HOWARD. I do not propose to debate it at any length.

Mr. FESSENDEN. We ought to have a short executive session.

Mr. HOWARD. I shall be through in a moment, and then I shall be entirely willing to take the vote on this amendment. Indeed, I will not say a word if there be a possibility of taking a vote now on the amendments offered by the Senator from Wisconsin.

Mr. FESSENDEN, and others. Let us vote on them now.

Mr. HOWARD. If 110 other gentleman wishes to address the Senate upon those two amendments, and the Senate is ready to take a vote upon them, I shall not occupy anytime of the Senate by remarks.

Several Senators. Let us vote.

Mr. HOWARD. Very well.

The PRESIDENT pro tempore. Isthe Senate ready for the question on the proposed amendment to the amendment?

Mr. HOWARD. Are both the amendments offered by the Senator from "Wisconsin included in tlie motion?

The PRESIDENT pro tempore. But one question can be taken at a time.

Mr. JOHNSON. The question now is 011 the amendment proposing to insert the word "voluntarily," as I understand it.

The PRESIDENT pro tempore. That is the question.

The question being taken by yeas and nays, resulted—yeas 10, nays 30; as follows:

YEAS— Messrs. Buckalew, Cowan, Davis, Doolittle, (xutliric, Hendricks. Johnson, Norton, Riddle, and Saulsbury—10.

NAYS—Messrs. Anthony, Chandler, Clark, Conness, Or J Cragin, Creswell, Edmunds, Ifessenden, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy. Ramsey, Sprague, Stewart, Sumner, Trumbull, Wade, Willey, Williams, and Wilson—30.

ABSENT—Messrs. Brown, Dixon, Grimes, McDougall, Nesmith, Sherman, Van Winkle, Wright, and Y ates—9.

So the amendment to the amendment was rejected.

Mr. DOOLITTLE. I now move the other amendment of which I gave notice, to insert after the word "thereof" in the thirty ninth line the words "excepting those who have duly received pardon and amnesty under the Constitution and laws, and will take such oath as shall be required by law," and on that I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. HENDRICKS. I wish to inquire of the Senator from Wisconsin, what is the meaning of the last clause of his amendment? Does it contemplate the enactment of a law in the future prescribing some new oath, or does it refer to the oath which has been already taken in pursuance of the proclamation of the President?

Mr. DOOLITTLE. Perhaps that provision of the amendment is not necessary to the idea, and I will omit that portion of it and let it stand simply as a test of the question whether those who have received pardon and amnesty shall be excepted from the effect of this amendment or n ot.

Mr. HENDRICKS. I think that is in better shape,

Mr. KIRKWOOD. I should like to hear it read as modified.

The Secretary. The words proposed to be inserted are, "excepting those who have duly received pardon and amnesty under the Constitution and laws."

Mr. KIRKWOOD. I understand that will dispense with the taking of the test oath. Is that, the Senator s intention?

Mr. DOOLITTLE. No, sir; not at all.

Mr, KIRKWOOD. The words requiring the taking of the test oath are stricken out.

Mr, DOOLITTLE. The test oath is still the law of the land. This has no effect on that

Mr. KIRKWOOD. This would override that if we adopt it.

Mr. DOOLITTLE. Not at all. This simply excepts from the provision of the section those who have received pardon and amnesty. I maintain that where we have granted under the Constitution and laws pardon and amnesty we have no right, though we have the power, to put them under the disability again.

Mr. HOWARD. One word. I desire to ask the Senator from Wisconsin whether the pardon and amnesty of which he speaks extend so far as to remove the disability created by the confiscation act of 18fl 2 against the holding of otEce under the United States.

Mr. FESSENDEN. I desire to ask my friend from Michigan whether that would make any particle of difference. We all know that this proposition has no chance of succeeding in any shape.

Mr. HOWARD. Not the slightest; but the Senator from Wisconsin seems to make a point on that question.

Mr. FESSENDEN and others. Let us vote.

Mr. WILLEY. I wish to ask a question of the Senator from Wisconsin. Suppose there are pardons, as there are likely to be a good many, between the time this amendment shall be propounded by Congress and the time it may be adopted by the Legislatures; what will be its application to pardons granted between this time and that?

Mr. JOHNSON. It would apply.

Mr. WOOD. I should like to hear the amendment read as it was first offered.

The Secretary read the amendment as originally offered by Mr. Doolittle.

Mr. J OHNSON. Does the honorable member from Wisconsin propose to exclude all those who may after the adoption of the constitutional amendment receive pardon? That it seems to me would be the effect as it now stands. I move, therefore, to amend it by inserting the words" or shall receive."

The PRESIDENT tempore. The amendment of the Senator from Wisconsin is not amendable. The question is on the amendment of the Senator from Wisconsin to the amendment of the Senator from Michigan.

The question being taken by yeas and nays, resulted—yeas 10, nays 82; 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, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32.

ABSENT—Messrs. Brown, Dixon, McDougall, Nesmith, Sherman, Wright, and Yates—7.

So the amendment to the amendment was rejected.

The question recurring upon the amendment of Mr. Howard, the yeas and nays were taken, with the following result:

YEAS— Messrs. Anthony, Chandler, Clark, C011- ness, Cragin, Creswell, Edmunds, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, Kirkwood, Lane of Indiana, Lane of Kansas, Morgan, Morrill, Nye, Poland, Pomeroy, Ramsey, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Wade, Willey, Williams, and Wilson—32.

NAYS—Messrs. Buckalew, Cowan, Davis, Doolittle, Guthrie, Hendricks, Johnson, Norton, Riddle, and Saulsbury—10.

ABSENT —Messrs. Brown, Dixon, McDougall, Nesmith, Sherman, Wright, and Yates—7.

So the amendment was agreed to.

Mr. FESSENDEN. I suppose it is not intended to go further with this subject this evening. I move that the Senate proceed to the consideration of executive business.

The motion was agreed to; and after some time spent in executive session, the doors were reopened, and the Senate adjourned.