Mr. JOHNSON. I am sure have not misapprehended the Senator. It would have been very difficult for anybody to misapprehend him, for he was exceedingly lucid in everything he said. It may be possible that I may fail to explain what I understand to have been his positions, and ifIshould do so in any art opfrplps e remarks which I am about to make, hope the honorableSenator will set me right. Mr. President, I propose 1st to inquire, what is the effect of the war itself? Is its successful result to reduce the States to the condition of Territories? I shall then inquire, if that is not its effect, whether that has been produced by any conduct upon the part of the citizens resrding within the limits ot these States? No member of the Senate, I am sure, is now to learn that there is no power in the constitution of the U.S. given to Congress, or any other Dept of the Government, to declare, orto carry on, a war against any State. The power to declare war, devolved upon Congress by the 8th section of the 1st article, is a owor evidently looking to a war between the U.S and a foreign nation. The authority, too, to protect the U.S., or a State, by arms against invasion is a power given to congress for protection against foreign invasion. If there could be any doubt, looking to the character of the Government, that such is the limitation of the war power that doubt would be removed by the fact that there is in another part of the same section a provision which looks to the carrying on of sugh a contest as the one in which we have just been engaged. The language of that clause of the section succeeding ti: one which gives to Congress the authority to declare war, to raise and support armies, and to maintain and equip a navy, is: “To provide for calling forth themilitiato execute tkhcc laws of the U.S., spppress insurrection, ” It was not, therefore, by means of the war sewer conferred upon Congress by the antecedent clause, giving to Congress the authority to declare war and vesting it with the means ade uate to the end designed, that domestic out reaks among ourselves were to be suppressed. The Convention looked to 2 contingencies as likely to happen: 1st, that we might be involved in war with foreign nations; 2ndly, that we might be involved in domestic troubles. For the one, they conferred upon congress the war power, strictly speaking; and for teother, the authority to suppress insurrections, not by means of the war power, but by means of force. It was a police power given to Congress as such; not a power under which, by any possible mode in which it could be exercised, any conquest, in the propersense of that term, was to be achieved; not a power by which there was to be extinguished any existinginstitution in anyone of the totes; and, above all, not a power to destroy a State or States. You will remember, Mr. President, and every member of the Senate who is familiar with the proceedings of the Convention will, I have no doubt, remember, that when it was suggested that Congress should have the authority to make war against a State, the proposition was repudiated as fatal to the Government by 2 leaders of that bod of mighty men, Hamilton and Madison. I have not time to state their reasons, nor to refer to the debates where they are to be found. It is sutheient for my purpose to say that they both denied that, as far as the Convention had proceeded at that time, any such authority was given to Congress, and protested against the propriety of conferring any such power, and it was never conferred. The power actually given was a power to preserve, not to destroy; a power to maintain, not to extinguish; a power to make the Government what the preamble to the constitution states to be the purpose of its framers, perpetual; a GOvernment for the security of liberty for themselves and their posterity forever. It would have been an extraordinary anomaly, one that would justly have derived its authors of the reputation that they new old in the eyes of the civihzed world, if, in forming a Government they designed to he perpetual, they had given it a power to destroy itself. The purpose, then, of the war power, strictly speaking, and of the police power conferred upon Congress by that clause in the 8th section of the 1st article, was to preserve, and not to destroy; to preserve it if assailed by a foreign foe; to preserve it if assailed by domestic treason or violence. The proposition is so clear that I should not have deemed it necessary to cite authorities for the purpose of proving it, but that perhaps the observations of the honorable member from Wisconsin may induce some of the Senate, or induce the pay lie, to suppose that there is in the constitution an authority to carry on awar against a State. The question has been before the SCOTUS in the cases teOpinion in which has been very much relied unon as maintaining in part the doctrine for which the honorable member contends; I meafn the prize cases. Mr. Justice Grier, in delivering the opinion of the court in these cases, uses this language: "By the constitution Congressalonehas the power to declare a national or foreign war. It cannot do clare war ainst a State, or any number of States, by virtuco any clausein the constitution. The constitution conferson the president the whole executive owor. He is bound to take care that the laws he aithfully executed. he is CommanderinChicf of the Army and Navy of the U.S and of the militia of the several States when called into the actual serviceof the U.S. He has no powerto initiate ordeclare war either against a foreign nation rouraary domestic State. Butby the actsof Congressoffeb E. 1795, and of March 3, 1807, hcis authorized to call out the militia and usethe military and naval forcesof the U.S. in caseof invasion by foreign nations, and to suppressinsurrection againstthe governmentofa State or of the U.S. ” Here, then, is an express denial of the power, either upon the part of Congress, or upon the part of the Executive to carry on awar against a State, under an clause of the constitution. The language is p ain and positive.” It can not, ” says the courtthat is Congress can not“ declare war against a State or any number of States, by virtue of an clause in the constitution.” and the same doctrine is held by the minority in the opinion delivered by Mr. Justice Nelson. He says: “ The actsof 1795and 1807did not and could not. under the constitution. confer on the President the power of deolaringwaragainst astate of this Union.” We have, then, the unanimous opinion of the Supreme Court that domestic troubles, insurrection a refusal to obey the constitution or laws of the U.S., or to execute the laws, or to interpose obstacles against the execution of the laws, do not authorize Congress to declare war against the State in which such insurrection may exist, is not a condition of things in which the President has any power to carry on a war by virtue of the war power for the purpose of reinstating the authority of the Government, but, on the contrary, is a state of things to be remedied by means of the police power, which Congress may authorize the use of by empowering the President to call out the militia, or use the Army and Navy of the U.S. to suppress an existing insurrection when it can be suppressed in no other way. It would seem, therefore, to follow thatwhen the insurrection is suppressed, when the contingency which requires aresort to the police power is at an end, the continuing use of that power, only conferred to suppress an insurrection, to carry on a war against a State in which there is no insurrection, is a simple absurdit. The design of the authority was to provide exclusively for the exigency, to meet which was the declared object of vesting the power in congress to suppress insurrection. f the authority of the Governmentis set at defiance, if the laws cannot be executed by civil process, it is made the duty of Congress to provide other means by which it can be ac comp ished. It is their prov ince, therefore, to put the President in possession of such means. But there is no more right to exert by force the police power after the 1m surrection is suppressed than there is to exert it before the insurrection commenced. Mr. President, if I am right in thisand I do not think I can be mistakenand there are no other grounds on which the proposition of the honorable Gentfrom Wisconsin might be controverted, it is found to be repudiated by the positive provisions of the constitution and by the decision of the Supreme Court. But it is said that although there was no authority to carry on hestilities for the purpose of exterminating the States in which insurrection revailed, that althou by that result would not have been attained by tcuse of force alone, yet that the conduct of the citizens of those States has attained it, and that the States as such are at an end. At an end how? At an end wh? At an end because they decided to sece e and attempted it? At an end because we have acquired rights over them by conquest which we had not when the rebellion begun? Now a word as to the 1st round. The States cease to exist by virtue of the ponduct of their own citizens, is the argument. Vhat conduct, and when had it that effect? They passed ordinances of secession. Were these valid? Had they any legal operation whatever? Did they take the States whose people had passed such ordinances out of the nion? Did they dissolve the connection to any extent which existed as between those States and the Union by force of the constitution? If they did, it can only be because the ordinances were valid. The States are out says the honorable Senfrom Wisconsin, because their people determined that they should o out they are out, because they were so far isloyal as to declare by ordinance that they were out; the are out because they are still disloyal, althoug the insurrection has been in fact suppressed and the authority of the Government reinstated. Well, i if they are, why is that the result?, If the ordinances were void, they could not take them out. If the citizens had not a right to be disloyal their disloyalty could not put them out. It: notwithstanding the ordinances, on the day after they were passed the States were as much in the Union as on the da before they were passed and if, after the ordinances were adopted an hostilities were being carried on, their citizens had no more right to be disloyal than they had before hostilities commenced, then they are just, as much in the Union now as they were before. Will any member of the Senate seriously maintain, or maintain at all, that the ordinance of secession had any validity whatever? If any member does so hold, the war upon our part has been a great crime; we have been traitors to the obligations we are under to the constitution, and not those who, exercising the right of secession, have separated themselves from us. But if, as we all hold, and now everybody thinks, the constitution confers no right of separation, but im. poses an obligation upon every citizen in every tatc, no matter what may be his conduct or the conduct of all his fellowcitizens, as absolute as it does upon every citizen in any other State, then the ordinances of secession were simply void, absolutely void, having no more effect to termi nate the connection between those States and the people of those States and the Government of the nion, than if such ordinances had been passed by any people outside of the limits of the U.S.; and my friendfrom Wisconsin must admit this view to be correct. If the ordinances of secession then had no operation, but were lo 1 nullitics, how is it that separation is etfecte by the conduct of the individual citizens? Js not every man who has been engaged in the insurrection, and who has attempted to maintain it by force of arms a traitor, if we look merely to the language of the constitution in its definition of treason? Can anybody doubt that? Whether he may be prosecuted for treason now, under the circumstances which have occurred since hestilities commenced is a grave question which I do not propose to is cuss or to express an opinion upon at this time. But, regarding only the single fact that he has been a party to the insurrection and has endeav ored to aid and support it by force of arms, I apprehend there is not a member of the Senate who will for a moment question the right of the Government to prosecute him for treason, and that that right is not dependent upon the time at which he may have attempts by force of arms to resist the authority of the Government. If done an hour before hostilities terminated by the surrender of the insurgents, he is just as much a traitor, in the eye of the constitution, looking alone to the fact that he was so engaged, as he was a traitor who, in the origin of the rebellion, supported it by force of arms and if this be so, why is it so? Only because he was then, and is still, a citizen of the U. S., bound by the constitution of the U.S. under the obligation of the laws of the U.S., and because what he has done has been an act violative of the obligations of both, and an act subjecting himself to the consequence! of that violation, just as absolutely as my honorable friend (if lie will permit me to suppose such a thing possible) would be if he, I}! his State of Wisconsin, was found in arms resisting the rightful authority of the U.S. Unless I am greatly mistaken this result cannot depend on whether a few or man are in the insurrection. It is insurrection still in the view of the constitution, and being insurrection attempted to be maintained by force of arms, it is treason, and treason only because, like our selves who have been here during the whole of the contest, faithful to our allegiance these err ing, misguided men were citizens of the U.S., and responsible to all the obligations imposed upon citizens of the U.S. by the constitution and laws passed under its authority. What would be the consequence of the opposite doctrineI do not mean to say that the honorable member from Wisconsin goes to thatq extentbut what would be the logical result of the opposite doctrine? The States, according to that doctrine, are out; as such they have ceased to exist; they are not to be recognized by. the constitution at all; they areasabsolutely without the constitution as States as any of the unor iized territories of the U.S. If this be so, if this is the effect. of what has happened, how are you to get them in? The honorable member goesto the length which I am vabout to state, if I correctly a prehended him, as I certainly endeavored to You are, he contends, to get them in a ain only by subeeting them 1st toaterritoria government. but does that admit? That they are under no obligation as citizens of a State to obey the constitution and laws of the U.S., that they are under no obligation to take any part in the election of the Executive, in the election of Senators, in the election of members of the Housemf Representatives. What follows from this? Does this enforce the constitution and laws? Is this the only manner in which the authority of the Government is to be reinstated? The offense of these citizens was a refusal to participate in the councils of the nation. The proposition is that that very refusal has put them in a condition in which they have no right to articipate in such councils, and cannot participate unless we hereafter, at any time when in our judvment we may think proper, give them that rig it. Let us see whatis to become in the mean time of our laws in other respects. How is your revenue to be collected by any laws now in force? If you impose a direct tax, how is that to be apportioned by any law now in force? The language of the constitution is that direct taxes are to be apportioned among the States in a certain proportion. Have you not done it pending the insurrection? You passed an act in 1861, from which I am about to read. It was passed on the 5th of Au ust, the rebellion having commenced in A ripreceding. I rather think my friend to whom I am re lyin voted for this law. Certainly I can find nollhing in the proceedings of the Senate to show that he or any other Senator opposed it; he will correct me if I am wrong. When this law was passed, the result of the conflict, in the appreension of some, was exceedingly doubtful; those of us who were most confident were some what apprehensive. All the conduct of the States or citizens upon which the honorable member now relies for the purpose of showing that these States ceased to eXist and are now Territories, they and their citizens, to be governed accordingl, had then occurred. What is the law passe, I believe, by a unanimous vote of this body, and as far as I know with like unanimity in the I douse? It is entitled “ An act to provide increased revenue from imports, to pay interest on the public debt, and for other purposes.” Its every section bears upon the question I am discussing, but I have not time to read the whole. I refer particularly to the 8th section, which provides: That a direct tax of $ 20,000000be, and is hereby. annually laid upon the U.S and the same shall be and is hereby, a portioned to the States. respectively, in manner following.” and then it proceeds to state the amount apportioned to each State, and among these items are these: “To the Suueof Virlinis. 937,550 and 2/3rd " rs. To the Sale of NCarolina. 576,194 and 2/3rd dollars. To the state of SCarolina. 363,572 3rd dollars. “To the state of Georgia. 584 dtlHOIillBBlld 367 and one o ars. " To thestate of Alabama. f529,313 and 1/3rd dollars. I “ To the state of Mississipp. i, 413" 84 and 2/3rd dollars. To the State o Louisiana. 385, 886 and 2 thire dollars. "To the state of Tennessee. 669,400 and ninct 8 dollars. “To the Slateof Arkansas. 261,886 dollars. “To the State of Florida. 77,522 and 2/3rd dollars. To the Slateof Texas. 355,106 and 2/3rd dollars.” Making an aggregate of between 5 and 6 million dollars as the proportions of these States of the $20,000000 wtheh you proposed to raise by this law. flock to the constitution of the Jnited, States and you find that you had no authority to make that apportionment except upon the theory that these States were then States of the Union. The honorable member tells us now that Virginia is out, and that each of the other named States are out, and have no existence. If she and the rest of them do not exist now they had no existence then; and on the other hand, if they were within the Union then, they are for the same reason within the Union now. After the law passed it was found somewhat difficult to enforce the collection of that portion of the $20,000,000 allotted to States actually in rebellion, and Congress deemed it necessary to pass a supplementary act, to which I also invite the attention of the Senate. It is the act of June 7 1862, entitled “An act for the collection of direct taxes in insurrectionary districts within the U.S., and for other purposes.” The 1st Section provides: “That when in any state or Territory, or in any portion of any State or Territory. by reasonof insurrection or rebellion. the civil authority of the Government of the U.S. is obstructed so that the provisions of the not entitled An act to provide increased revenue from imports. to pay interest on the public (gait and for other purposes. approved Au lls 1. for assessing. levying and collecting the ireot taxes therein mentioned. cannot be peaceably executed, thesaiddirecttaxes. Bysaid not apportioned anion the several States and Territories. respectively shall o apportioned and charged in eachState and Territory or part thereof. wherein the civil authority is thus obstructed. upon all the lands and lots of ground situate therein. respectively.” It then provides that each tract of land in those Statesnot Territories shall be liable for its proortion of the tax, and commissioners are to be appuinted to collect the tax as fast as our armies make their roaress. Just as the insurrection is quelled, whother it be in whole or in part, in anyone State, the operation of the law commences through the civil means furnishedb the laws; and in the interim, to guard against the contingency that there maybe sales of the lands, which itmay be necessary to the Govment to dispose ofin order to realize the tax, the law provides that the amount of the tax apportioned by the act of 1861 shall be considered as a lien upon all the land in these very States, as States, which the honorable member from Wisconsin would have us believe, as no doubt he believes, are now out of the Union, and not States at all. Did he not vote for the actof18432? I have no doubt he did. Was there an member of this body who called in question toright of congress to pass that act? and yet the actassumes and there is no power to pass it except on the correctness of that assumptionthat they are still States bound to pay their proportion of the taxes for the support of the Government and to carry on the war, and will be States when the insurrection is suppressed. I refer to these 2 acts, and there are a great many others that I might cite with the same view, for the purpose of proving that, in the view of Congress, and in the view of the honor able member from Wisconsin himself at the time he gave his assent to these 2 acts, the States were in and not out of the Union, were living and not dead States, or States that could die. But this fact is further established by the very 1st act that was passed for the purpose of carrying on the war, the act ofJuly 13, 1861, entitled “ An not further to provide for the collection of duties on im orts and for other purposes.” It provides that where the presient finds it impossible to collect the revenue from imports in the ports of any of the States in insurrection, he may do it elsewherein some locality in the particular State where the insurrection does not extend; or, if the insurrection is commensurate with the entire State, then he is to collect it on shipboard or to close the ports of such State, and to subject any foreign vessel attempting to enter such a port, after notice of its having been closed by the president under authority of the act, to condemnation as prize of war. These provisions are absolutely inconsistent with the idea of the honorable member from Wisconsin, as I think; but there is something else in that act that is even more inconsistent. What view did Congress take of the character of the insurrection at the time it passed the act of July 13, 1861? The language of the 5th section of that act is: “That wheneverthe President, in pursuanceof the provisions of the 2nd section of the act entitled An act to provide for calling forth the militia to oxocutetho laws of the Union. Suppress insurrection and repel invasions and to repeal the act now in forcefor that purpose. approved February 28. 17, shall have called forth the militia to suppress combinations against the laws of the U.S., and to causethe laws to beduly executed and the insur gents shall have failed to dispersdbythe time direct od by the President, and when said insurgentsclaim to notunder the authority of any Stateor States and such claim is notdiscluiined or repudiatedbythepersonsexereising the functions of government in such Stateor States or in the partorparts thereofin which said combination exists. nor such insurrection suppressedbysaid StateorStates. thenandinsuchcase" that is, the case of an insurrection existing and not suppressed “it may and shall be lawful for the President. bl proclamation, to declare that the inhabitantsof snc State, or any section or part thereof. where such insurrection exists. are in astatoof insurrectionagainst the U.S and thereupon all cominercial interrourse by and ctwcen the same and the citizens thereof and the citizens of the rest of the U.S shall ceaseand be unlawful.” How long? Till Congress shall legislate? No, Mr. President; but “shall cease and be unlawful so long as such condition of hostility shall continue;” in other words, as long as the insurrection continues. That ended, the use of the militia and the use of the Army of the U.S. tobring about that end is to termi nate and what said the POTUS? I am not aware that any member of the Senate questioned the legality of nny proclamation issued by President Lincoln on this subject, or questioned either whether he had not gone to the whole extent of the power devolved upon him by the section of the act of 1861 which I have just quoted and what did he proclaim 1 His proclamation of April 15, 1861, e“gan thus: Whereasthelaws of the U.S. have been for some time past and now are opposedand the ox ecubionthereofobstrnctedin the KIatza SCarolina. Goo a Alabama. Florida. Mississippi. Louisi ana. sud oxas. by combinations too powerful to be suppressedby the ordinary courseofjudicial proceed rings or by the powersvestedin the marshals y law.” In his proclamation of April 19, 1861, he re"cites: Whereas an insurrection againstthe Government of the U.S. has broken out in the States of SCarolina. Geo in. Alabama. Florida. Missis sippi. Louisiana and ends, and the lawsof the U.S. for the collection of the revenue cannot be effectually executedtherein conformableto that provision of the constitution which requires duties to by uniform throughout the U.S.: and wherca a combination of persons. engagedin such insurrection have threatened to rant pretended letters or to authorize the carers thereof to commit assaults on the lives. vessels and property of good citizens of the country lawfully cage; 1!!common. on the high seas and in watersof the U.S.; and whereas an executive proclamation has been already issued. uiring the person s engaged 1;: these disorderlyproce to desisttherefrorn. calling out amilitia force for the purpose of repressing thesame and convonin Congrqm u extraordinary sessionto deliberate an determine thereon; N ow. therefore. I. Abraham Lincoln, POTUS 1866., 19 with p. view to the some purposes beforementioned, and to the protection of the public peace, and the lives and property of quiet and orderly citizens pursuing their lawful occupations, gress uutil conshall have assembledand deliberated on the said unlawful proceedings, or until the same shall have ceased. have further deemedit advisable to set on foot:1blockadeof the iorts within the Statenafore said, in Pursuance oft c laws of the U.S and oft claw of nations in such caseprovided.” In the proclamation of April 27, 1861, he announces that, by the previous proclamation of the 19th, a blockade. of the ports of certain States was ordered to be established, and adds: “And whereas since that date public property of the U.S. has been seized: the collection of the revenue obstructed, and duly commissioned officers of the U.S. while engaged in executin the ordersof their superiors have been arrestedant held in custody as prisoners, or have been impeded ilnegtahle discharge of their official duties without due process by persons claiming to actunder authorities of the States of Virginia and NCarolina: with an cilicicnt, blockadeof the ports of those States also he established.” In the proclamation of August 12 1861, he states that a joint; committee of both lHouses of Congress had requested him to recommend a day of public humiliation, fasting, and prayer, and he proceeds to do so, and to state the objects for which prayer should be offered, namely, tor the reestablishment of law, order, and peage throughout the whole extent of our country. You authorize him to invoke, and he invokes the merciful interference of Heaven to make us again what we were beforeStates united under one form of Government, with the same powers adequate to make us a nation prosperous and powerful. You tell him to go to Heavens throne and implore Heavens interposition to restore us to the condition in which we were before the rebellion, to pray that “our arms may. be blessed and made etfectual for the reestablishment of law, order, and peace through out the wide extent of our country.” No in vocation to bless only a part of our land and leave the other out of His benediction., You tell him to issue a proclamation invoking the blessings of God upon the entire country, not for the purpose me relyofbringing about individual happiness, but for the purpose of bringing about what existed before under the constitution of the U.S. peace and order, a recognition of the authority of the Government and of the authority of the laws. Yet, according to the theory of the honorable member from Wisconsin, at. that very time the work had been accomplished which the proclamation sought to prevent. The proclamation, pursuing your own authority, prays God to make our arms successful to the end of restoring peace and ordery everywhere in all the States. The honorable members theory is that. there was a large portion of the country, territorially including what were 11 States before, which cannot be restored by any blessings on the arms of the U.S. Whether t icy were ever to have the benefit of the constitution, or when they were to have it, or to whatextent they were to have it, according to his theory, is todepend upon the discretion of Congress. Again, what has the Government done with your knowled I Have they not, just as we have succeede in getting the authority of the U.S. reinstated in the ports of the U.S., or territorially within the States, extended the revenue laws? Do you not collect duties in NewOrleans, in Charleston, in Savannah, in Texas? How do you do this? Under what authority? Underthe authority of ante cedentlaws, which ive it only in relation to the ports of States: on yet, according to the honorable members doctrine, all these ports were not ortsof states of this Union at the time when the xecutive, with the knowledge of Congress and his individual knowled, undertook to collect. duties and to enforce the execution of the impost acts and acts for the collection of internalrevenue. What was the subject of the debate this morning? The honorable member from Massachusetts, who, I believe, was the 1st to brooch in the Senate the doctrine that. the States were extincta doctrine not then received, as I remember, with unanimous appro Hernment. l bation by this body as far as any opinion was expressed on the subjectthat honorable gentleman himself, this morning, finding fault as he thought Was his duty, with the manner in which the SecyTreasury was dis charging his duty of collecting the revenue in the States in which the insurrection did revail, found no fault with his attempt to colect the revenue. It was only as to the manner of collecting; it. was his fai are to administer the oath to the assessors whom he has appointed for that purpose. He recognizes, theretore, the duty of the Secretary to collect revenue in SCarolina and in Louisiana? Wh? Under what laws? Laws passed by you exten in the revenue system to the Territories of the Tl U.S., or laws having no force whatever in that particular, except upon the theory that the States, notwith staning the insurrection, remained and were States of the Union? You are selling lands there now on that theory; I suppose I am guilty of no want. of propriety in saying that that subject has been in part before the committee on the judiciary. GenlSherman , by an order passed after he reached Georgia and SCarolina, set apart a largeportion of the territory of those 2 States for the freedmen. By the order, the mostvaluable portion of SCarolina was embracedthat portion in which the Sea Island cotton is made. There are no such lauds there now to be acted on by that order. Why? Because you have sold them to meet SCarolinas proportion of the direct tax; you have sold them to meet the preportion due by the individual citizens of that State to whom they belonged. Where did you get thatauthority? Under the antecedent law; and that law was passed on the theory that the States were still in and could not be got out; and that law is now being executed upon the theory that they are in, that each State, as well as every individual member of each State, is just as responsible to pay the tax which the Government may from time to time impose, as he or it. was before the insurrection commenced. But that is not all. The Senate, and I suppose my friendfrom Wisconsin acted with t ie rest of the Senate in that res eet, has confirmed nominations of judges an district attorneys and marshals for these very States.