Benjamin Franklin Thomas.

Speeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) online

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last man to take from him any claim which he, certainly
with some sensitiveness, seems to assert, that he belongs
to a sensible party. In Massachusetts, I am glad to
believe, it is a party m the minority, although there are
in it very sensible gentlemen.

Ml'. Thomas. I cannot yield the floor to a speech.
If my colleague desires to ask a question or to make an
explanation, I have no objection.

Mr. Eliot. I am endeavoring to make an explana-
tion ; and I began on that pomt because my colleague
has been so very sensitive. Two or three times he
referred to it as though I intended to intimate that he
and the People's party in Massachusetts were not sensi-



168 THE LOUISIANA ELECTION CASES.

ble. Far be it from me to say that they are not sensible
men. In that particular, however, I tlihik they are
decidedly in the minority ; and, so far as the questions
are concerned that divided the People's party from the
great body of men in Massachusetts last fall, I cannot,
from my stand-pohit, believe that they were as sensible
as I hope my learned friend will be when he comes next
to the polls.

Mr. Thomas. I cannot yield the floor to my colleague
to make a pohtical speech.

Mr. Eliot. My colleague must keep good-natm'ed.

Mr. Thomas. It is not surely a question of good
nature. Mine is not easily exhausted; but I desire to
proceed with my remarks. I do not deske to hear a
talk about the People's party or any other party. Graver
matters are before us.

Mr. Eliot. Does my friend decliae to yield the
floor ?

Mr. Thomas. For a political speech, I must. If my
colleague has any explanation he desu-es to make, I will
yield for explanation ; but I cannot yield for a speech.

Mr. Eliot. I desh-e to make an explanation. Mr.
Speaker, I do not know whether that phrase, " State
suicide," originated in this House or in the other branch
of Congress. It is not a phrase that to my mind conveys
a clear and distinct state of facts. I have never used it.
My learned colleague has attributed it to me. I repeat,
I have never used it. I have entertamed the idea,^and
now entertain a distinct idea, of what I have called
State treason. I had the honor to speak upon that
subject last summer ; and it was in the coiu'se of that



THE LOUISIANA ELECTION CASES. 169

speech that I stated, more at large than I can now
do, what seem to me to be the true doctrines on that
subject.

Mr. Thomas. I cannot yield the floor and my time
for this discussion.

Mr. Eliot. It takes some little time to explain my
point.

Mr. Thomas. I do not deske to give up my time for
discussion upon this question, and I must dechne further
to yield the floor.

Mr. Eliot. Very well: then I will just say

The Speaker pro tempore. The gentleman from
Massachusetts is not in order. His colleague declines
to yield the floor.

Mr. Eliot. My colleague yields to me, as I under-
stand, to flnish this statement.

The Speaker pro tempore. Does the gentleman from
Massachusetts yield the floor X

Mr. Thomas. For my colleague to finish what he
was saying at the moment.

Mr. Eliot. When a State has done what, under the
language of the Constitution, amounts to treason ; when
it has given aid and comfort to the enemy ; when it has
levied war against the Government ; when its Governor
has abdicated, its Legislature gone over to the enemy ;
when it has, by aU the forms of law, arrayed itself
against the Government ; I say, that State has committed
treason, and that, as such, it has forfeited all its rights as
a State, leaving the loyal men of the State to be cared
for and protected by the Government. But I repeat,
that, as a corporation, it has committed treason, and has

22



170 THE LOUISIANA ELECTION CASES.

forfeited all its rights under the Government as a traitor
State.

Mr. Thomas. Is this all my colleague has to say ?

Mr. Eliot. Just to finish the sentence. And may
be declared by the Government as having forfeited all
its rights and privileges as a State.

Mr. Thomas. The doctrine, then, is, that a State
cannot hang itself, but may put itself in a state of prepa-
ration to be hanged.

Mr. Eliot. It deserves to be hanged.

Mr. Thomas. It can, of course, be arraigned for
treason ; it can be indicted for treason, brought to trial
before a jury of its peers for treason, and hung for trea-
son [laughter]. The statement well illustrates what
I have before stated, that there is no form of words into
which you can put this doctrme that its absiu^dity will
not be transparent. The proposition commits suicide,
not the State. It is felo de se. A State cannot commit
treason ; nor can the void act of a State change the rela-
tion which loyal citizens sustain to the United States ;
nor are the relations which loyal and obedient citizens
sustain to the Government of the United States broken
or severed because the ordinances of secession are
backed up by traitors in arms. These citizens of Louisi-
ana, therefore, hold the same legal relation to the United
States that they did before the acts of secession and
treason, by men wearing the garb of State authority,
were committed.

The State of Louisiana exists ; its functions may be
in abeyance. All the powers of the State exist ; and all
that is necessary is simply that the machinery of the



I



THE LOUISIANA ELECTION CASES. 171

State shall be put in motion. The State itself is like
Milton's angels, which,

" Vital in every part,
Cannot but by annihilating die."

This, then, Mr. Speaker, is the state of things before
us : The loyal men of these two districts of Louisiana,
holding unbroken their legal relations to the Govern-
ment of the United States, have elected representatives
to this Congress of the United States ; and the question
is. Shall they be admitted "? If not, why not? An objec-
tion has been made, though not much pressed, that there
were no vacancies to fill. Vacancies existed by reason
of the failure to elect at the general election, and those
vacancies have never been filled. There is no one occu-
pying a seat in this House from either of these two
districts, because there have been no persons entitled by
law to fill either of them. A case arose in which vacan-
cies should be filled in pursuance of writs issued by
executive authority of the State of Louisiana. Were
they so issued]

I do not mean to say that this question is free from
difficulty : it certainly is not. But it has been, I think,
quite too summarily disposed of by gentlemen, opposed
to the resolutions of the Committee. It seems to me,
Mr. Speaker, that much, very much, of the difficulty we
have m the discussion of this and similar questions,
results from the attempt to apply to the condition of
things in which we are placed, prmciples and rules from
writers upon mtemational law that really throw no light
upon, and have no just application to, that condition, in
many respects sui generns ; and for our guide in which,



172 THE LOUISIANA ELECTION CASES.

history and public law furnish no precedents or even
strong analogies. No just or reasonable conclusion can
be drawn from the powers of a military governor, in a
territory conquered from a foreign enemy, as to the
nature and extent of the powers to be exercised in
States, or parts of States, rescued from the possession of
rebels in arms agamst us. This is a military occupation
of our own territory ; an occupation which has become
necessary by reason of the fact, that the Constitution and
laws of the United States cannot otherwise be enforced ;
and that it is our duty to enforce them, and the right of
the loyal citizens of Louisiana to have them enforced,
not merely for our benefit, but for their protection.

Now, Mr. Speaker, what is the object of this vast
movement of ours ] For what are we carrymg on this
war? For the pm-pose of enforcing the laws of the
United States. Your war has no other just or legiti-
mate object but the enforcement of your laws. If these
laws are obstructed by armed force in the State of
Louisiana, you have the right to take and to maintain
military occupation of that State to remove such obstruc-
tion. You have the right to see that the laws of the
United States are executed m the State of Louisiana.

Do gentlemen say, that, because of the existence of
armed rebellion in the State of Louisiana, we have no
right to enforce the laws of the United States there ?
Have not we the right to collect taxes 1 Have we not
the right to enforce the revenue-laws, and the right to
conscript soldiers from the citizens of that State ? Have
you not the right, by military power, to protect the
courts of the United States in the district of Louisiana



THE LOUISIANA ELECTION CASES. 173

in the exercise of theii- jurisdiction? I take this po-
sition, and I fail to see how it can be controverted,
that if you are in the military occupation of this, your
own territory, you hold it for the purpose for which the
war is w^aged ; for the purpose of upholding the jurisdic-
tion, and enforcing obedience to the laws, of the United
States.

The analogies sought to be di-awn from Vattel, or
other writers on public law, as to the military occupation
of a conquered territory from a foreign State, have very
imperfect application to the case before us. The Consti-
tution and the laws of the United States are the supreme
law of Louisiana, and you are to enforce the execution
of those laws ; and I see no valid distmction between
enforcing those laws which impose duties and biu'dens
upon the people, and the enforcement of those laws
which guarantee and protect the rights of the loyal people
of the State ; rights springing from us, and to be pro-
tected by us.

Mr. Conway. Was the law under which these men
were elected a law of the United States?

Mr. Thomas. The law from which the right to elect
was derived, and to be elected, was a law of the United
States, and the supreme law of Louisiana. Mr. Speaker,
I wish to make matters clear as I go. I want gentlemen,
who believe that we should enforce the laws of the
United States for the collection of taxes and the collec-
tion of the revenue in Louisiana, to point out the dis-
tinction between enforcing the laws of the United States
which impose these burdens and duties upon the people,
and the enforcing of the laws which secure to them the



174 THE LOUISIANA ELECTION CASES.

enjoyment of theii' rights and privileges under the Con-
stitution, and especially this great and invaluable right
of representation, of helping to make the laws which
they are bound to obey. Our duty to protect is as clear
as their duty to obey. They are reciprocal and mter-
dependent.

We may meet this question of the issue of writs of
election in another manner. The question, whether
these writs were properly issued or not, is a technical
question, and we can meet it by a technical answer.
We may meet the objection, that the writs were not
issued by the executive authority of the State, by saying
that they were issued by the only executive authority of
that State which the Government of the United States
or the people in these districts in any way recognize,
and which, in matters of highest concern, they have
recognized and obeyed. The writs of election were, in
fact, issued upon the earnest request of the loyal citizens
of these districts, and were responded to and confirmed
by them.

But I do not consider the strict legality of these writs
vital to the issue before us. I go one step further. I
contend, whether these writs were issued by the execu-
tive authority of the State or not, this may be a valid
election. I contend, that this provision of the Constitu-
tion, as other provisions of statute in relation to this
subject, is within the well-settled distinction between
provisions which are directory and those which are
essential. I say, under the law of elections, practised
upon from the beginning of the Government to this
hour, you have gone behind the mere form to get at the



THE LOUISIANA ELECTION CASES. 175

substance and truth of the thing ; and that these safe-
guards, provided by the laws to secure to the citizens
the orderly exercise of the right of election, were never
mtended to be used as barriers to exclude them from
their enjoyment. Let me call the attention of the House
to elections whose validity this House has recognized,
and which proceed upon this distinction.

Mr. Porter. If I understand the gentleman from
Massachusetts, he asserts, that, there being no Governor
of Louisiana elected m pursuance of the provisions of
her constitution and laws, the military commandant
appointed by the President, who has assumed the title
of Military Governor, is to be regarded as the Governor
or executive authority of the State within the meaning
of that clause of the Federal Constitution which pro-
vides, that, in case of vacancies in the representation of
a State, the "executive authority thereof" shall issue
writs of election.

Mr. Thomas. I do not state the proposition so
broadly as that. What I have said is, that we are in
the military occupation of our own territory, a portion
of it where the laws of the United States have been
impeded by armed force ; that we are there to enforce
the laws of the United States ; and that it is difficult to
draw a sound distinction between the powers effective
for the enforcement of the laws imposing burdens and
duties upon the subject, and those which may be used
for his protection. The gentleman is mistaken in his
facts. Mr. Shepley did not assume the title of Military
Governor. He was appomted Military Governor by the
President.



176 THE LOUISIANA ELECTION CASES.

Mr. Porter. It seems to me that the gentleman is
at fault in saying there is any law of the United States,
so far as relates to the election of representatives in
Congress, to be enforced. The Constitution says,

" The times, places, and manner of holding elections for senators
and representatives shall be prescribed in each State by the Legisla-
ture thereof; but the Congress may at any time, by law, make or
alter such regulations, except as to the places of choosing senators."

When Congress shall have passed a law prescribing
the time, place, and manner of electing representatives,
then the military power may be invoked to remove
obstructions in the way of carrying it into practical
effect.

Mr. Thomas. The provision of the Constitution cited
by my friend from Indiana is the one referring to the
general elections of representatives, and not to the
elections to fill vacancies. It is by no means clear that
any legislation of Congress could remove the difficulty.
In case of vacancies in the delegation of any State, the
Constitution says " the executive authority thereof shall
issue writs of election to fill such vacancies." The
legislation of Congress cannot supersede or modify this
provision ; and after legislation, as before, the same
questions would arise as now. Is there an executive
authority of the State, within the meaning of this provi-
sion'? Is it sufficient that the writ is issued by one
claiming to exercise the executive authority, with the
recognition of this Government and with the assent of
the people ? Or is it our duty to go behind his certifi-
cate and action, and mquire, in a case where there is no
conflicting claim or contest, as to the regularity of his



THE LOUISIANA ELECTION CASES. 177

appointment? And lastly, supposing that we were
satisfied the authority was not regular; yet if a day
was fixed, was known to all the voters, and the case
shows they complied with the notice, and exercised the
right of election fully and freely, must we or ought we
to declare the election A^oid because the authority issuing
the writ was not regular ?

Mr. Porter. The learned gentleman will see to
what a dangerous conclusion his argument must neces-
sarily lead him. The Constitution provides, that, " when
vacancies happen in the representation from any State,
the executive authority thereof shall issue writs of elec-
tion to fill such vacancies." There is also, however,
another provision as to senators, that, " if vacancies
happen by resignation or otherwise durmg the recess
of the Legislatnre of any State, the executive thereof
may make temporary appointments until the next
meeting of the Legislature, which shall then fill such
vacancy." The same words, " executive thereof," are
employed in both cases ; so that, from the argument
of the gentleman, it must necessarily follow, that the
military governor appointed by the President may fill
vacancies in the Senate of the United States. Surely
no one would be willing to allow such an exercise of
power.

Mr. Thomas. I do not think such a conclusion
necessarily or legitimately follows. There is a broad
distinction between the exercise of an ofiUcial and judicial
judgment in selecting a senator, and the exercise of a
power in appointing a day for the people to select their
own representatives. It has not been the uniform prac-

23



178 THE LOUISIANA ELECTION CASES.

tice of the House to hold that these writs shall be issued
by the executive authority of the State. I call attention
to the fact, that gentlemen have been allowed to take,
and now hold, seats upon this floor, under the acts of the
Provisional Convention and Governor of Virginia. I call
attention also to the fact, that uniformly elections have
been held m the Territories before then- admission as
States into the Union, and where, therefore, the elections
were held without the action of State authorities.

Mr. Porter. I would suggest to the gentleman from
Massachusetts, that that power has been exerted solely
under the thkd section of the fourth article of the Consti-
tution, providing that " new States may be admitted by
the Congress mto this Union." That clause has been
interpreted to include the right to have all the officers
at the time of admission necessary to represent the State
in the Federal Congress.

Mr. Thomas. Be it so ; but that provision does not
abrogate the other provision of the Constitution, which
provides that the times and places for elections shall be
fixed by the Legislature of the State. The practice
bends the form to the substance. The House, by a
large majority, during the present term, determined that
an election held at a time not fixed by the Legislature
of the State, but in the constitution of the State, was a
vahd election, though clearly a departure from the letter
of the law.

The point to which I was endeavoring to lead the
House is the distmction between those provisions formal
and directory and those that I deem essential ; and that
the House, in the exercise of its power to judge of the



THE LOUISIANA ELECTION CASES. 179

elections and the returns of its members, has always felt
itself enabled to go behind the " letter which killeth to
the sphit which maketh alive," and to ascertam whether,
in point of fact, there has been a fair election by the
people of the district, having full opportunity to vote,
and without violence or fraud. And, therefore, if gentle-
men differ as to the authority of a military governor,
or, as I would call him, the provisional governor, of a
State, they may still be satisfied that there was a full and
fan' notice to the people of the election ; and that the
loyal people of those districts, having had such full and
fah' notice, did meet and freely exercise then- elective
franchise.

I beg leave to make this further obvious suggestion to
the House: that you camiot expect, in districts hke
those in Louisiana, or in any other of the States whose
citizens have been in arms agamst us, that regularity, or
that adherence to the forms of law, which you may justly
demand in a State where the operation of the laws has
not been obstructed by force of arms. Irregularities are
inevitable ; and this House, under its power to determine
the election of members, will see, not whether all the
customary provisions of law have been complied with,
but whether, in point of fact, there has been a fair and
just election. Do sticking-in-the-bark gentlemen tell us
the registry law was not complied with, and that, there-
fore, this election is void? It is a fact, that this provi-
sion for a registry law for New Orleans was embodied in
the constitution of Louisiana adopted in 1852. It is also
a fact, that there were two elections of representatives
from New Orleans, of members admitted to seats in this



180 THE LOUISIANA ELECTION CASES.

House, before any registry law had been passed. And
upon what ground ? Upon the plain ground, that you are
not to deprive the electors of the exercise of this most
important right of representation because there is a
failure to comply with formal provisions of law. Sup-
pose, for instance, the law requhed a check-hst, and a
check-list was not used in the election, and yet, upon
a full mvestigation of the facts, the House is satisfied a
man was elected by a clear majority, and without fraud
or violence : there can be no question, that, under the
power vested in the House, it would look dkectly to the
merits of the election, and confirm it.

The distinguished gentleman from Indiana [Mr. Voor-
hees], who first spoke upon this subject, averred that
there was great danger from the admission of these
claimants, and, in like cases, that the executive authority
of this Government would finally prevail over the rights
and powers of the House. The answer to all such sug-
gestions is to be found in the fidelity of this House to its
rights, to its powers, and to its duties ; and, without such
fidelity, there can be no safety. It is, in all cases, the
first and fuial and only judge of the qualifications,
elections, and returns of its members ; and so long as it
holds that power in its right hand, and exercises it dis-
creetly, fhmly, fearlessly, we need have no fear of the
Executive.

The same gentleman suggests, that this was not a free
election, because the persons who voted at the election
voted for the purpose of avoiding the effects of the pro-
clamation of the President of the United States ; or, as
the proclamation of the military governor somewhat



THE LOUISIANA ELECTION CASES. 181

curiously terms it, to avail themselves of the "benefits"
secured by the proclamation ; to wit, the benefits of hold-
ing men m bondage. I beg leave to call the attention
of gentlemen to the fact, that the proclamation of Sept.
22 nowhere holds out the hope of exemption from its
operation to any district because it should have a member
of Congress ; that, on the other hand, the proclamation of
Sept. 22 is put upon the distinct ground, that it is not
a district, but the State, which is to be represented, and
by an election at which a majority of the voters of a
State voted. The suggestion in the proclamation of the
governor was, therefore, without authority, unless derived
from other source than the proclamation of Sept. 22.

But, if that proclamation had contamed this promise m
exact terms, I do not see why loyal and faithfid people
might not deshe to avoid the practical effects upon them,
whether legal or illegal, constitutional or in conflict with
the Constitution, wise or unwise. That argument proves
too much. It goes to this extent, that elections are not
to be influenced by the consideration, that those engaged
in them may thus secure more effectually the protection
of the Government. One very excellent reason why they
should exercise the elective franchise, and send members
to this House, is to effect that object.

I put this case, then, upon two or three plain grounds.
I put it upon the ground, that these men, who are asking
seats in this House, are loyal citizens of the United States ;
that they have been elected by loyal citizens of the United
States ; that they have been elected at an election which
was free ; that they were elected by numbers, which,
compared with other elections, indicate that the people in



182 THE LOUISIANA ELECTION CASES.

the districts were in the movement, and that it was had
in entire good faith. I put it upon the plain ground,
that while you demand of the loyal people of Louisiana
faithful allegiance and obedience to your laws, and to
bear the burdens of your Government, you should give
to them the inestimable rights which that Government
was formed to secure to them ; without which they would
be subjects, and not citizens ; slaves, and not freemen.
I put it upon the still higher ground, that the loyal men
in the State of Louisiana, who have not engaged in this
rebellion, or have returned at the earliest moment to
theh allegiance, have a right to come before you, and ask


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Online LibraryBenjamin Franklin ThomasSpeeches in the second and third sessions of the Thirty-seventh Congress, and in the vacation (Volume 2) → online text (page 12 of 15)