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Speech On Reconstruction
July 9, 1867 in Congress

    Mr. STEVENS, of Pennsylvania. I trust that in that time I shall be able to state the position which I hold to be the correct one with regard to this bill, without attempting to answer the various remarks which have been made by gentlemen on the other side.

    I confess, sir, that a small portion of the blame with reference to the acts of the President since we adjourned, may be attributed to Congress, in that it used improper language in the acts heretofore passed. And this, it appears to me, was owing to an indistinct conception of the condition of the territory for which we were legislating. If we had then all agreed, as we have since, that the States that were lately in rebellion were conquered territory and as such subject to the power of this nation, and had treated them accordingly, we should have had very little trouble in reconstructing government in the South upon the principle of the admission of new States. But, sir, we were not all perfectly agreed in our understanding of the laws of nations as applicable to this question; nor is it wonderful that that we should thus have differed, when even some of the judges of the Supreme Court have differed in their opinions upon this subject.  I will state what I suppose to have been our real position.

    The nation was afflicted with a civil war, which for a time was an insurrection. Some twelve million of the inhabitants of the country claimed they no longer belonged to this nation.  They set up an independent government.  They established all the machinery of government, both of a national government and of States under that national government.  They raised large armies to defend their pretensions. We, at the period when we declared against them a blockade, admitted them to be, not an independent nation, but an independent belligerent, rising above the rank of insurrectionists, and entitled to all the privileges and subject to all the liabilities of an independent belligerent. The nations of Europe so treated them. We so treated them in our dealings  with prisoners of war. In short, there could be no doubt of the fact.

    We were, then at war as two independent nations; and it depended upon the will of the conqueror  whether the defeated party should be treated merely as a vanquished nation, or whether we should, in addition, punish them as individuals for the violation of the sovereign rights of the nation. We conquered. What did we conquer? We conquered the confederate government. We conquered all the States forming the confederate government. We conquered a government that had been erected and maintained by those who declared that they owed no allegiance to the Government of the United States. For these conquered rebels to pretend that they had any rights under a Constitution which they had thus repudiated and attempted to destroy, and that the States which had been arrayed in hostility to the nation were still states within the Union, as asserted to-day by the gentleman from Wisconsin, {Mr. ELDRIGE,} seems to me a bold absurdity.  Yet that was the doctrine of the President. That is the doctrine which some gentlemen maintain here.

    Under military law we treated then as conquered provinces.  What is the law with regard to provinces conquered from a foreign independent belligerent? When you conquer territory from a foreign nation or an independent belligerent, the territory thus conquered is governed by military power, by the Commander-in-Chief of the Army, being in this case the President, until the legislative power of the nation shall have spoken and directed that laws shall govern. But the moment the legislative power of the nation interposes the military authority cease to have sway, and the Commander-in-Chief has no more to say in regard to this matter than a corporal of militia. He is to do just what the legislative power orders him to do, and he can do nothing else.

    A great deal is said about the President acting as Commander-in-Chief of the Army. Until he was superseded in his authority by Congress I have no fault to find with his maintaining military rule in the South. But he assumed to exercise legislative powers; he assumed to establish governments; he assumed to appoint civil officers; he assumed that these conquered provinces should come back at once to the enjoyment of all the rights of loyal States under the Constitution, and be entitled to all the privileges which they had possessed prior to their rebellion. Now, sir, as I said before, nothing of this kind came within the power of the Commander-in-Chief. What is the duty of the Commander-in-Chief? If Congress sends an army to quell the Indian war in Nebraska, what is the Commander-in-Chief to do? Congress orders that army to go there. It raises and equips the army. What do the officers do? They pass no act of legislation; they go there and order the troops when to charge and when to retreat; they drill them; they put them through military exercises. But they can do no act that looks like regulating the object of the war or the object with which the army is sent there. Why, sir, the Constitution of the United States makes express reservation of all such power to Congress.  It expressly declares that Congress shall have the power "to make rules for the government and regulation of the land and naval forces." The Executive has nothing to do with it; the judiciary has nothing to do with it. Congress is the only and the controlling power. Congress has enacted the rules and articles of war. Could the President of the United States interfere with those? Could he add new articles, new rules, new regulations? Certainly not. The military officers that were sent as commanders in the States were simply appointed agents of Congress. To be sure, the original bill provided a military supervision simply, and we had intended to follow it up with a law putting reconstruction into the hands of civilians. That is what I should have been disposed to do now, (and I had prepared a bill with that view,) using the military simply as a police and appointing civilians to reconstruct. But if Congress chooses to take officers of the Army and assign them to this duty, they then become the agents of Congress, and neither the President nor any officer under him has any right to interfere or do anything but execute what  Congress commands.

    Now, sir, it being reduced, I think, to a plain proposition that Congress is the only power that can reconstruct and reclaim these outlying States, the President had no right to call upon the Attorney General or any other officer of the Government to interfere in any manner in such reconstruction. There is but one appeal, and that is either to the agents appointed by Congress or to Congress. It has been well decided in Dorr's case that all power on this subject is vested in Congress. But, sir, we need not look to any such decision. It ought to be known before this time by the President of the United States -- that the Constitution of the United States does not apply to any Territory. The States are parties to the Constitution; they are the contracting powers; they are the substantive body.  Territory, however, acquired by purchase or conquest or by the inheritance is the property only of that substantive power, of that power bound up by the Constitution; and that power alone is governed by the Constitution, but does not extend for any purpose into any Territory or conquered province. Why, then, talk about the Constitution regulating the action of Congress in a province, in a Territory, in a conquered State, whether conquered from a legitimate State or an illegitimate State?

    I may be asked how we would treat the confederate States of America? Just as Congress chooses. They are our property; their citizens are our subjects.  Their lives, their liberties are subject to the supreme will of this body, always controlled by the laws of nations, the laws of war, and the laws of humanity. There is no other power on earth; there is no branch of the Government; there is no power of the Government, except what I have mentioned, that has any right to interfere or to say a word on the subject. If you wish to punish the malefactors for violated majesty, that is another matter.  Possibly you might do so through your courts of justice. At least you might attempt it, but I do not suppose you can do it. But there is one thing clear: that territory not being yet declared by Congress to be in a state of peace or restoration is under the military authority of the Government, and any tribunal constituted by the military authority, any military tribunal, any court-martial can try any one of those who belonged to the belligerent forces. Jefferson Davis, or any man of the army of the confederacy conquered by us, is this day liable to trial by military tribunal and to sentence.  Mr. Speaker, while I would not be bloody-minded, yet, if I had my way I would long ago have organized a military tribunal under military power, and I would have put Jefferson Davis and all the members of his cabinet on trial for the murders at Andersonville, the murders at Salisbury, the shooting down of our prisoners in cold blood.  Every man of them is responsible for those crimes. It was a mockery to try that wicked fellow Wirz, and make him responsible for acts which the confederate cabinet was guilty of. Of course they should be condemned. Whether they should be executed afterward I give no opinion. I would carry out such punishment as, in my judgment, the justice of the country required. I would carry it out through the legal tribunals that I have mentioned, and which are as much the legal tribunals of the land as the Supreme Court of the United States. That is my view exactly of what would be logical.

     As to the question of confiscation, I think that a man who has murdered a thousand men, who has robbed a thousand widows and orphans, who has burned down a thousand houses. Escaped well if, owning $100,000, he is fined $50,000 as a punishment and to repair his ravages. I said before that I was not in favor of sanguinary punishments. I trust, in saying that, that I need not be supposed to condemn them when they are necessary.  For instance, the clamor that has been raised against the Mexican government for the heroic execution of murderers and pirates, {applause,} that clamor finds no favor with me. I think that while they have gone far enough, (though not half as far as they might be justified in going,) yet there is no law nor policy under heaven, and no sense of justice that will condemn that great, heroic, much-enduring man who for six years has been hunted with a reward upon his head, has been driven from one end of his empire to another until he got the very borders, who has no parallel in history that I know of, except it be William of Orange, who was driven from island to island, and from sand patch to sand patch by just about as bloody a prosecutor as was to be found in Maximilian when he decreed that every man warring against him should be shot down without further trial. I am not going to shrink from saying that I think such punishment proper. I do not say, nor do I ask that anybody should be executed in this country. There has got to be a sickly humanity here which I dare not get along side of for fear I might catch it. {Laughter.} And it is now held by one of the most liberal and enlightened men of the country -- I mean Gerrit Smith -- that we should even pay a portion of the damages inflicted on the rebels, and pay a portion of the rebel debt. {Laughter.} I shall come some day to have an argument with Horace Greeley about that, and he will explain it, therefore I need not say anything further. I believe I have said enough to explain my views on the subject, and now I ask for a vote on the question. {Applause.} I withdraw the motion to recommit. 

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