THIRTY-EIGHTH CONGRESS, FIRST SESSION.

WM. M. FISHBACK and ELISHA BAXTER, of Arkansas.

In these cases of two claimants to seats in the Senate, the Judiciary Committee held, when the rebellion in a revolted State shall have been so far suppressed that the loyal inhabitants are free to establish their State government upon a republican foundation, and by the aid and not in subordination to the military to maintain the same, it will be entitled to representation in Congress. Believing that such a state of things did not exist in Arkansas, the committee recommended the Senate not to admit the claimants. The report was adopted

IN THE SENATE,
JUNE 27, 1864.

Mr. TRUMBULL, from the Committee on the Judiciary, submitted the follow ing report:

That the credentials presented are in due form, purporting to be under the seal of the State of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right to seats were to be determined by an inspection of the credentials, Messrs. Fishback and Baxter would be entitled to be sworn as members of this body. It is, however, admitted by the persons claiming seats, and known to the country, that, in the spring of 1861, the State of Arkansas, through its constituted authorities, undertook to secede from the Union, set up a government in hostility to the United States, and maintain the same by force of arms. Congress, in view of the condition of affairs in Arkansas and some other States similarly situated, passed an act, July 13, 1861, authorizing the President, in case of an insurrection in any State against the laws of the United States, and when the insurgents claimed to act under the authority of the State, and such claim was not repudiated, nor the insurrection suppressed by the persons exercising the functions of government in such State, to declare the inhabitants of such State, or part thereof where such insurrection existed, to be in a state of insurrection against the United States; and that, thereupon, all commercial intercourse by and between the same and the citizens of the United States, except under license and upon certain conditions, should cease and be unlawful so long as such condition of hostility should continue.

At

In pursuance of this act the President, August 16, 1861, issued his proclamation declaring the inhabitants of the State of Arkansas, except the inhabitants of such parts thereof as should maintain a loyal adhesion to the Union and the Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents, to be in a state of insurrection against the United States, and that all commercial intercourse between them and citizens of other States was and would be unlawful, except when carried on under special license, until such insurrection should cease. the date of this proclamation no part of the State of Arkansas was occupied and controlled by the forces of the United States, nor did the inhabitants of any part of the State, at that time, publicly maintain a loyal adhesion to the Union and the Constitution. Hence, upon the issuing of said proclamation, a state of hostility or civil war existed between the inhabitants of the State of Arkansas and the United States, and there was not at that time any organized authority in Arkansas, loyal to the Constitution, competent to choose or appoint senators of the United States. It is claimed, however, that since that period the State, or the greater portion of it, has been occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents, and that the inhabitants of said State, loyal to the Union and the Constitution, have reorganized their State government, and have the right, through the legislature they have instituted, to choose two senators for said State.

H. Mis. Doc. 57-41

The Constitution declares that "the Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years," and make each house "the judge of the election, returns, and qualification of its own members." In the investigation of the claimants' right to seats, the first question to be determined is, was the body by whom they were elected clothed with authority to elect senators; in other words, was it, in a constitutional sense, "the legislature of Arkansas?"

A question similar to this arose some years since between Robbins and Potter, each claiming to have been elected senator by the legislature of Rhode Island, though by different bodies. In that case the Senate was called upon to decide, and did decide, which of the two bodies, each claiming to be legitimate, was the legislature contemplated by the Constitution. The Supreme Court of the United States, in the case of Luther vs. Borden. growing out of the political difficulties in Rhode Island in 1841 and 1842, held that "when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority; and its decision is binding on every other department of the government."

The claimants laid before the committee a statement of the circumstances attending the assembling of the body by which they were elected, in which, after detailing the condition of the State while under rebel control, and prior to September, 1863, they say:

Upon the advent of the Union army the rebels in the State, guerillas and all, for the most part, left with their armies, leaving about two-thirds of the State comparatively free from guerilla depredation.

The Union men came flocking from the mountains, where they had lain for two years, to the federal standard, and nearly every man whom the medical examiners would receive joined the federal army.

Those who were rejected, (and their number was enormous, their constitutions having been broken by exposure and their hardships,) and those whom circumstances prevented from joining the army, found themselves, so far as law was concerned, in a state of chaos. Many of them, living remote from military posts, had not even the protection of military law. Immediately they began to agitate the question of reorganization of their State government. They first moved in primary meetings, and on the 30th of October, 1863, they held a mass meeting in the city of Fort Smith, in which some twenty counties are said to have been represented, and at which they called upon all the counties in the State to elect delegates (after having elected commissioners of election) to a State convention, to be held in the city of Little Rock on the 8th day of January, 1864, for the purpose of so amending the constitu tion as to abolish slavery. Simultaneously with this meeting, meetings were held in a number of other counties. In every single one (in ignorance of the action of others in many instances) they declared for a convention and for the abolition of slavery.

Commissioners of election were first elected, and they held the elections for the delegates. All this was prior to the President's amnesty proclamation.

When the convention met forty-five delegates were present, representing about half of the State. (Several of the delegates failed to attend.) They repudiated the rebel debt, State and confederate, abolished slavery, and submitted the constitution to the people for their ratification. They also provided for taking the vote for State and county officers, and members of the legislature, at the same time with the vote for the ratification of the constitution. The result of those elections was 12,177 for the constitution and 226 against it, an election of State and county officers, an election of delegates to the lower house of Congress, and a representation in the State legislature from forty-six of the fifty-four counties of the State.

The number of persons in Arkansas who voted for President in 1860 was 54,053, less than one-fourth of whom, as appears from the statement of the claimants, took part in the reorganization of the State government. This, however, would not be fatal to the reorganization, if all who were loyal to the Union had an opportunity to participate, and the State was free from military control. Such, however, is understood not to have been the case. The President had not then, nor has he up to this time, recalled his proclamation, which declared the inhabitants of Arkansas in a state of insurrection against the United States, nor was there any evidence before the committee that said insurrection had ceased or been suppressed. At the time when the body which chose the

claimants was elected, when it assembled, and at this time, the State of Arkansas is occupied by hostile armies, which exercise supreme authority within the districts subject to their control. While a portion of Arkansas is at this very time, as the committee are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of things continues, and the right to exercise armed authority over a large part of the State is claimed and exerted by the military power, it cannot be said that a civil government, set up and continued only by the sufferance of the military, is that republican form of government which the Constitution requires the United States to guarantee to every State in the Union.

When the rebellion in Arkansas shall have been so far suppressed that the loyal inhabitants thereof shall be free to re-establish their State government upon a republican foundation, or to recognize the one already set up, and by the aid and not in subordination to the military to maintain the same, they will then, and not before, in the opinion of your committee, be entitled to a representation in Congress, and to participate in the administration of the federal government. Believing that such a state of things did not at the time the claimants were elected, and does not now, exist in the State of Arkansas, the committee recommend for adoption the following resolution:

Resolved, That William M. Fishback and Elisha Baxter are not entitled to seats as senators from the State of Arkansas.

On the 29th of June, 1864, the Senate agreed to the report-yeas 27, nays 6.

NOTE. The debate in the Senate upon this case will be found in vol. 53, pages 328 5 3360, 3368.

THIRTY-EIGHTH CONGRESS, SECOND SESSION.

R. KING CUTLER and CHARLES SMITH, of Louisiana.

Joint action of both houses is necessary before the admission of senators from a State which has been declared in rebellion. The Senate did not act upon the report.

IN THE SENATE,

FEBRUARY 18, 1865.

Mr. TRUMBULL, from the Committee on the Judiciary, made the following

report:

The Committee on the Judiciary, to whom were referred the credentials of R. King Cutler and Charles Smith, claiming seats from the State of Louisiana, report:

That in the early part of eighteen hundred and sixty-one the constituted authorities of the State of Louisiana undertook to withdraw that State from the Union, and so far succeeded in the attempt as by force of arms to expel from the State for a time the authority of the United States, and set up a government in hostility thereto.

Since that time the United States, as a necessity to the maintaining of its legitimate authority in Louisiana as one of the States of the Union, has been compelled to take possession thereof by its military forces, and, in the absence of any local organizations or civil magistrates loyal to the Union, temporarily to govern the same by military power.

While a large portion of the State, embracing more than two-thirds of its population, was thus under the control of the military power, steps were taken, with its sanction, and to some extent under its direction, for the reorganization of a State government loyal to the government of the United States. The first action had looking to such reorganization was a registration of the loyal persons within the limits of military control entitled to vote under the constitution and laws of Louisiana at the beginning of the rebellion. The lists thus made up contain the names of between fifteen and eighteen thousand voters, which is represented to be more than half the number of voters in the same parishes previous to the rebellion, and more than two-thirds of the voting population within the same localities at the time the registry was taken. The next step taken in the reorganization of the State government was the election of State officers on the 22d of February, 1864, under the auspices of the military authority acting in conjunction with prominent and influential citizens. At this election 11,414 votes were polled, 808 of which were cast by soldiers and sailors, citizens of Louisiana, who would not have been entitled to vote under the constitution of Louisiana as it existed prior to the rebellion, for the sole reason that they were in the military service, but who possessed in other respects all the qualifications of voters required by that instrument. The balance, 10,606, were legal voters under the constitution of the State prior to the rebellion. The third step in the reorganization of the State government was to call a convention for the amendment of the constitution of the State. Delegates to this convention were elected March 28, 1864, under the joint and harmonious direction of the military authorities, and the State officers who had been elected on the 22d February previous. In a paper submitted to the committee by Major General Banks he states that delegates were apportioned to every election district in the State, both within and beyond the lines, so that if beyond the lines of the army the people of the State had chosen to participate in that election, the delegates might have been received if they had shown themselves loyal to the government. They were about 150 in number. All elections subsequent to that for delegates have been ordered and controlled by the representatives of the people.

In the organization of the convention it was provided that a majority of the whole number apportioned to the State, if every district within and beyond the lines had been represented, should constitute a quorum for the transaction of business. Every vote in the convention, from a question of order to the ratification of the constitution, was conducted under this rule, and was approved by a majority of all the delegates apportioned to the State if every district had been represented.

The delegates met in convention, in the city of New Orleans, on the 6th day of April, 1864, remained in session till July 23, 1864, and adopted a constitution, republican in form, and in entire harmony with the Constitution of the United States and the great principles of human liberty.

This constitution was submitted, by the convention which adopted it, to the people for ratification, on the first Monday of September, 1864, and adopted by a vote of 6,836 for, to 1,566 against it.

At the same time the vote was taken on the adoption of the constitution, a legislature was elected, representing all those parishes of the State reclaimed from insurgent control, and embracing about two-thirds of its population. This legislature assembled at New Orleans on the 3d day of October, 1864, and proceeded to put in operation a State government by providing for levying and collecting taxes, the establishment of tribunals for the administration of justice, the adoption of a system of education, and such other measures as were necessary to the re-establishment of a State government in harmony with the Constitution and laws of the United States. The State government thus inaugurated has been in successful operation since the period of its establishment, and your committee are assured that if no exterior hostile force is per

mitted to enter the State, the local State government is fully equal to the maintaining of peace and tranquillity throughout the State, in subordination to the Constitution and laws of the United States.

The manner in which the new State government was inaugurated is not wholly free from objection. The local State authorities having rebelled against the government, and there being no State or local officers in existence loyal to its authority, in taking the initiatory steps for a reorganization, some irregularities were unavoidable, and the number of voters participating in this reorganization is less than would have been desirable. Yet, when we take into consideration the large number of voters who had left the State in consequence of the rebellion, who had fallen in battle, or were absent at the time of the election, both in the Union and rebel armies, and the difficulties attending the obtaining of a full vote from those remaining, in consequence of the unsettled condition of affairs in the State, and the further fact that the adoption of the amended constitution was not seriously opposed, and therefore the question of its ratification not calculated to call out a full vote, the number of votes cast is perhaps as large as could have been expected, and the State government which has been reorganized, as your committee believe, fairly represents a majority of the loyal voters of the State. Appended hereto is a copy of the various orders and proclamations issued in regard to the election of State officers, delegates to the constitutional convention, and members of the legislature, and also a copy of election laws and instructions relative to the duties of commissioners of elections, issued for the guidance of officers in conducting said election.

Messrs. Cutler and Smith, the claimants for seats, were duly elected senators by the legislature which convened on the 3d day of October, 1864, and but for the fact that, in pursuance of an act of Congress passed on the 13th day of July, 1861, the inhabitants of the State of Louisiana were declared to be in a state of insurrection against the United States, and all commercial intercourse between them and the citizens of other States declared to be unlawful, which condition of things had not ceased at the time of the reorganization of the State government and the election of Messrs. Cutler and Smith, your committee would recommend their immediate admission to seats.

The persons in possession of the local authorities of Louisiana having rebelled against the authority of the United States, and her inhabitants having been declared to be in a state of insurrection in pursuance of a law passed by the two houses of Congress, your committee deem it improper for this body to admit to seats senators from Louisiana, till by some joint action of both houses there shall be some recognition of an existing State government, acting in harmony with the government of the United States, and recognizing its authority.

Your committee therefore recommend for adoption, before taking definite action upon the right of the claimants to seats, the accompanying joint resolution:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States do hereby recognize the government of the State of Louisiana, inaugurated under and by the convention which assembled on the 6th day of April, A. D. 1864, at the city of New Orleans, as the legitimate government of said State,. entitled to the guarantee and all other rights of a State government under the Constitution of the United States.