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mittee of the Senate and House of Representa- | the Constitution was adopted. In each instance, tives, constituted under the concurrent resolu- the State admitted has been “declared to be one tion of the 13th of December, 1865, making it of the United States, on an equal footing with their duty to “inquire into the condition of the the original States in all respects whatever." States which formed the so-called Confederate The Constitution, too, so far as most of the States of America, and to report whether they or powers it contains are concerned, operates directly any of them are entitled to be represented in upon the people in their individual and aggre. either House of Congress, with leave to report by gate capacity, and on all alike. Each citizen, bill or otherwise," not being able to concur in therefore, of every State owes the same alle the measures recommended by the majority, or giance to the General Government, and is entiin the grounds upon which they base them, beg tled to the same protection. The obligation oi leave to report:
this allegiance it is not within the legal power In order to obtain a correct apprehension of of his State or of himself to annul or evade. It the subject, and as having a direct bearing upon is made paramount and perpetual, and for that it, the undersigned think it all important clearly very reason it is equally the paramount duty of to ascertain what was the effect of the late in the General Government to allow to the citizens surrection upon the relations of the States where of each State, and to the State, the rights seit prevailed to the General Government, and of cured to both, and the protection necessary to the people collectively and individually of such their full enjoyment. A citizen may, no doubt. States. To this inquiry they therefore first ad- forfeit such rights by committing a crime against dress themselves.
the United States upon conviction of the same, First, as to the States. Did the insurrection where such forfeiture by law antecedently passed at its commencement, or at any subsequent time, is made a part of the punishment. But a State legally dissolve the connection between those cannot in its corporate capacity be made liable States and the General Government? In our to such a forfeiture, for a State, as such, under judgment, so far from this being a "profitless the Constitution, cannot commit or be indicted abstraction," it is a vital inquiry. For if that for a crime. No legal proceeding, criminal or connection was not disturbed, such States dur- civil, can be instituted to deprive a State of the ing the entire rebellion were as completely com- benefits of the Constitution, by forfeiting as ponent States of the United States as they were against her any of the rights it secures. Her before the rebellion, and were bound by all the citizens, be they few or many, may be proceeded obligations which the Constitution imposes, and against under the law and convicted, but the entitled to all its privileges. Was not this their State remains a State of the Union. To concede condition ?
that, by the illegal conduct of her own citizens, The opposite view alone can justify the denial she can be withdrawn from the Union, is virtuof such rights and privileges. That a State of ally to concede the right of secession. For what the Union can exist without possessing them is difference does it make as regards the result inconsistent with the very nature of the Gov- whether a State can rightfully secede, (a docernment and terms of the Constitution. In its trino, by-the-by, heretofore maintained by nature the Government is formed of and by statesmen North as well as South,) or whether States possessing equal rights and powers. States by the illegal conduct of her citizens she ceases unequal are not known to the Constitution. In to be a State of the Union? In either case the its original formation perfect equality was se- end is the same. The only difference is that by cured. They were granted the same represen- the one theory she ceases by law to be such a tation in the Senate, and the same right to be State, and by the other by crime, without an represented in the House of Representatives ; against law. But the doctrine is wholly errothe difference in the latter being regulated only neous. A State once in the Union must abide by a difference in population. But every State, in it forever. She can never withdraw from or be however small its population, was secured one expelled from it. A different principle would Representative in that branch: Each State was subject the Union to dissolution at any moment. given the right, and the same right, to partici- It is
, therefore, alike perilous and unsound. pate in the election of President and Vice Presi Nor do we see that it has any support in the dent, and all alike were secured the benefit of measures recommended by the majority of the the judicial department. The Constitution, too, committee. The insurrectionary States are by was submitted to the people of each State sep- these measures conceded to be States of the Union. arately, and adopted by them in that capacity. The proposed constitutional amendment is to be The convention which framed it considered, as submitted to them as well as to the other States. they were bound to do, each as a separate sov- In this respect each is placed on the same ground. ereignty, that could not be subjected to the To consult a State not in the Union on the proConstitution except by its own consent. That priety of adopting a constitutional amendment consent was consequently asked and given. The to the government of the Union, and which is equality, therefore, of rights was the condition necessarily to affect those States only composing of the original thirteen States before the Gov- the Union, would be an absurdity; and to allow ernment was formed, and such equality was not an amendment, which States in the Union might only not interfered with, but guaranteed to desire, to be defeated by the votes of States not them as well in regard to the powers conferred in the Union, would be alike nonsensical and opon the General Government, as to those re- unjust. The very measure, therefore, of subserved to the States or to the people of the mitting to all the States forming the Union beStates.
fore the insurrection a constitutional amendment, The same equality is secured to the States makes the inquiry, whether all at this time are which have been admitted into the Union since'in or out of the Union, a vital one. If they are
not, all should not be consulted; if they are, The idea that the war power, as such, has been they should be, and should be only because they used, or could have been used, to extinguish the
The very fact, therefore, of such a sub- rebellion, is, in the judgment of the undersigned, mission concedes that the Southern States are, utterly without foundation. That power was and never ceased to be, States of the Union. given for a different contingency-for the con
Tested, therefore, either by the nature of our tingency of a conflict with other governments, an Government or by the terms of the Constitution, international conflict. If it had been thought the insurrection, now happily and utterly sup- that that power was to be resorted to to suppress pressed, haz in no respect changed the relations a domestic strife, the words “ appropriate to that of the States, where it prevailed, to the General object” would have been used. But so far from Government. On the contrary, they are to all this having been done, in the same section that intents and purposes as completely Štates of the confers it, an express provision is inserted to Union as they ever were. In further support of meet the exigeney of a domestic strife or insurthis proposition, if it needed any, we may confi- rection. To subdue that, authority given to dently appeal to the fact just stated, that the call out the militia. Whether, in the progress very measure recommended, a constitutioral of the effort to suppress an insurrection, the amendment to be submitted to such States, fur- rights incident to war as between the United nishes such support; for, looking to and regard- States and foreign nations may not arise, is a ing the rights of the other States, such a sub- question which in no way changes the character mission has no warrant or foundation except of the contest as between the Government and the upon the hypothesis that they are as absolutely insurrectionists. The exercise of such rights . States of the Union as any of the other States. may be found convenient, or become necessary
never be under any circumstances a for the suppression of the rebellion, but the "profitless abstraction" whether under the Con- character of the conflict is in no way changed stitution a State is or is not a State of the Union. by a resort to them. That remains, as at first, It can never be such an abstraction whether the and must from its very nature during its continpeople of a State once in the Union can volun- uance remain, a mere contest in which the Gov. tarily or by compulsion escape or be freed from ernment seeks, and can only seek, to put an end the obligations it enjoins, or be deprived of the to the rebellion. That achieved, the original rights it confers or the protection it affords. condition of things is at once restored. Two
A different doctrine necessarily leads to a judicial decisions have been made, by judges of dissolution of the Union. The Constitution eminent and unquestioned ability, which ful supposes that insurrections may exist in a State, sustain our view. In one, that of Amy Warand provides for their suppression by giving wick, before the United States district court of Congress the power to "call forth the militia Massachusetts, Judge Sprague, referring to the for the purpose. The power is not to subjugate supposed effect of the belligerent rights which it the State within whose limits the insurrection was conceded belonged to the Government durmay prevail, and to extinguish it as a State, but ing the rebellion, by giving it, when suppressed, to preserve it as such by subduing the rebellion, the rights of conquest, declared: by acting on the individual persons engaged in • It has been supposed that if the Government it, and not on the State at all. The power is have the right of a belligerent, then, after the altogether conservative; it is to protect a State, rebellion is suppressed, it will have the rights of not to destroy it; to prevent her being taken conquest; that a State and its inhabitants may out of the Union by individual crime, not, in be permanently divested of all political advanany contingency, to put her out or keep her out. tages, and treated as foreign territory con, The continuance of the Union of all the quered by arms.
This is an error, a grave and States is necessary to the intended existence of dangerous error. Belligerent rights cannot be the Government. The Government is formed exercised where there are no belligerents. Conby a constitutional association of States, and its quest of a foreign country gives absolute, unlimintegrity depends on the continuance of the ited sovereign rights, but no nation ever makes entire association. If one State is withdrawn such a conquest of its own territory. If a hosfrom it by any cause, to that extent is the Union tile power, either from without or within, takes dissolved. Those that remain may exist as a and holds possession and dominion over any porgovernment, but it is not the very government tion of its territorý, and the nation, by force of the Constitution designs. That consists of all; arms, expel or overthrow the enemy, and supand its character is changed and its power is presses hostilities, it acquires no new title, and diminished by the absence of any one. merely regains the possession of that of which
A different principle leads to a disintegration it has been temporarily deprived. The nation that must sooner or later result in the separation acquires no new sovereignty, but merely mainof all, and the consequent destruction of the tains its previous rights. Government. To suppose that a power to pre
When the United States take possession of serve may, at the option of the body to which a rebel district, they merely vindicate their preit is given, be used to destroy, is a proposition existing title. Under despotic governments conrepugnant to common sense; and yet, as the fiscation may be unlimited, but under our Govlate insurrection was put down by means of ernment the right of sovereignty over any portion that
power, that being the only one conferred of a State is given and limited by the Constituupon Congress to that end, that proposition is tion, and will be the same after the war as it the one on which alone it can be pretended that was before.”' the Southern States are not in the Union now In the other, an application for habeas corpus as well as at first.
to Mr. Justice Nelson, one of the judges of the
Supreme Court of the United States, by James full enjoyment, of all her constitutional righa Egan, to be discharged from an imprisonment and privileges.' to which he had been sentenced by a military Again, a contrary doctrine is inconsistent with commission in South Carolina, for the offence of the obligation which the Government is unde murder alleged to have been committed in that to each citizen of a State. Protection to each State, and the discharge was ordered, and, in an a part of that obligation-protection not only as opinion evidently carefully prepared, among against a foreign, but a domestic foe. To bed other things, said:
that it is in the power of any part of the peops “For all that appears, the civil local courts of of a State, whether they constitute a majority the State of South Carolina were in the full ex
or minority, by engaging in insurrection an: ercise of their judicial functions at the time of adopting any measure in its prosecution to make this trial, as restored by the suppression of the citizens who are not engaged in it, but opposeti rebellion, some seven months proviously, and to it, enemies of the United States, having do by the revival of the laws and the reorganiza- right to the protection which the Constitution tion of the State in obedience to, and in confor- affords to citizens who are true to their alle mity with, its constitutional duties to the Union. giance, is as illegal as it would be flagrantly upIndeed, long previous to this the provisional just. During the conflict the exigency of the government had been appointed by the Presi- strife may justify a denial of such protection, dent, who is commander-in-chief of the army and subject the unoffending citizen to inconve and navy of the United States, (and whose will nience or loss; but the conflict over, the exigency under martial law constituted the only rule of ceases, and the obligation to afford him all the action,) for the special purpose of changing the immunities and advantages of the Constitution, existing state of things, and restoring the civil one of which is the right to be represented in government over the people. In operation of Congress, becomes absolute and imperative. A this appointment, a new constitution had been different rule would enable the Government to formed, a governor and legislature elected under escape a clear duty, and to commit a gross vioit, and the State placed in the full enjoyment, or lation of the Constitution. It has been
said that entitled to the full enjoyment, of all her constitu- the Supreme Court have entertained a different tional rights and privileges. The constitutional doctrine in the prize cases. This, in the judg. laws of the Union were thereby enjoyed and ment of the undersigned, is a clear misappreobeyed, and were as authoritative and binding hension. One of the questions in those cases over the people of the State as in any other was, whether in such a contest as was being portion of the country. Indeed, the moment waged for the extinguishment of the insurrecthe rebellion was suppressed, and the govern- tion, belligerent rights, as between the United ment growing out of it subverted, the ancient States and other nations, belonged to the former. laws resumed their accustomed sway, subject only. The Court properly held that they did; but the to the new reorganization by the appointment of parties engaged in the rebellion were desig: the proper officer to give thiem operation and effect. nated as traitors, and liable to be tried as traiThis organization and appointment of the public tors when the rebellion should terminate. Il functionaries, which was under the superinten- the Confederate States, by force of insurrection, dence and direction of the President, the com- became foreign States and lost their character as mander-in-chief of the army and navy, of the States of the Union, then the contest was an incountry, and who, as such, had previously gov-ternational one, and treason was no more comerned the State, from imperative necessity, by mitted by citizens of the former against the latter, the force of martial law, had already taken than by those of the latter against the former place, and the necessity no longer existed.” Treason necessarily assumes allegiance to the
This opinion is the more authoritative than it government, and allegiance necessarily assumes might possibly be esteemed otherwise, from its a continuing obligation to the government. being the first elaborate statement of the rea- Neither predicament was true, except upon the sons which governed the majority of the Supreme hypothesis that the old state of things continued. Court at the last term in their judgment in the In other words, that the States, notwithstand. case of Milligan and others, that military coming the insurrection, were continuously, and are missions for the trial of civilians are not consti- now, States of the United States, and their cititutional. Mr. Justice Nelson was one of that zens responsible to the Constitution and the laws. majority, and of course was advised of the Second: what is there, then, in the present poligrounds of their decision. We submit that tical condition of such States that justifies their nothing could be more conclusive in favor of exclusion from representation in Congress? Is the doctrine for which they are cited than these it because they are without organized, govern. judgments. In the one, the proposition of ments, or without governments republican in conquest of a State as a right under the war to point of form ? In fact, we know that they suppress
the insurrection is not only repudiated have governments completely organized with by Judge Sprague, but, because of the nature of legislative, executive, and judicial functions. our Government, is considered to be legally im- We know that they are now in successful operapossible. “The right of sovereignty over any tion; no one within their limits questions their portion of a State will," he tells us, ‘only be legality, or is denied their protection. How the same after the war as it was before.” In the they were formed, under what auspices they other, we are told that the suppression of the were formed, are inquiries with which Congress rebellion restores the courts of the State," and has no concern. The right of the people of a that when her government is reorganized she at State to form a government for themselves has ance is "in the full enjoyment, or entitled to the never been questioned. In the absence of any re
striction that right would be absolute; any form admission into the Union, no one has ever preBould be adopted that they might determine up- tended that when that is had, the State can again on.
The Constitution imposes but a single re- he brought within its influence. The power is striction—that the government adopted shall be exhausted when once executed, the subject forth" of a republican form," and this is done in the with passing out of its reach. The State admitted, obligation to guarantee every State such a form. like the original thirteen States, becomes at once It gives no power to frame a constitution for a and forever independent of congressional control. State. It operates alor upon one already different view would change the entire characformed by the State. In the words of the Fed- ter of the Government as its framers and their eralist, (No. 44,) "it supposes a pre-existing contemporaries designed and understood it to be. government of the form which is to be guaran. They never intended to make the State governreed.'' It is not pretended that the existing ments subordinate to the General Government. governments of the States in question are not of Each was to move supreme within its own orbit; the required form. The objection is that they but as each would not alone have met the exigenwere not legally established. But it is confi- cies of a government adequate to all the wants of dently submitted that that is a matter with the people, the two, in the language of Mr. Jefferwhich Congress has nothing to do. The power son, constituted "co-ordinate departments of one to establish or modify a State government be- single and integral whole;" the one having the longs exclusively to the people of the State. power of legislation and administration "in alfairs When they shall exercise it, how they shall ex- which concerned their own citizens only;" the ercise it, what provisions it shall contain, it is other,"whatever concerned foreigners, or citizens their exclusive right to decide, and when decid- of other States.” Within their respective limits ed, their decision is obligatory upon everybody, each is paramount. The States, as to all powers and independent of all congressional control, if not delegated to the General Government, are as such government be republican. To convert an independent of that government as the latter, in obligation of guarantee into an authority to in- regard to all powers that are delegated to it, is terfere in any way in the formation of the gov. independent of the governments of the States. ernment to be guaranteed is to do violence to The proposition, then, that Congress can, by force language. If it be said that the President did or otherwise, under the war or insurrectionary illegally interfere in the organization of such or any other power, expel a State from the Union, governments, the answers are obvious: First. or reduce it to a territorial condition and govern If it was true, if the people of such States not it as such, is utterly without foundation. The only have not, but do not, complain of it, but, on undersigned deem it unnecessary to examine the the contrary, have pursued his advice, and are question further. They leave it upon the obsersatisfied with and are living under the govern- vations submitted, considering it perfectly clear ments they have adopted, and those govern- that States, notwithstanding occurring insurreemehts are republican in form, what right has tions, continue to be States of the Union. Congress to interfere or deny their legal exist Thirdly. If this is so, it necessarily follows ence ?
Second. Conceding, for arguments that the rights of States under the Constitution, sake, that the President's alleged interference as originally possessed and enjoyed by them, are was unauthorized, does it not, and for the same still theirs, and those they are now enjoying, as reason, follow that any like interference by far as they depend upon the executive and juCongress would be equally unauthorized ? Å dicial departments of the government. By each different view is not to be maintained because of of these departments they are recognized as the difference in the nature of the powers con- States. By the one, all officers of the governferred upon Congress and the President, the one ment required by law to be appointed in such being legislative and the other executive ; for it States have been appointed, and are discharging, is equally, and upon the same ground, beyond without question, their respective functions. the
scope of either to form a government for a By the other they are, as States, enjoying the people of a State once in the Union, or to expel benefit, and subjected to the powers of that desuch a State from the Union, or to deny, tempo- partment; a fact conclusive to show that, in the rarily or permanently, the rights which belong estimation of the judiciary, they are, as they to a State and her people under the Constitu- were at first, States of the Union, bound by the tion.
laws of the Union, and entitled to all the rights Congress may admit new States, but a State incident to that relation. And yot, so far they once admitted ceases to be within its control, are denied that right which the Constitution and can never again be brought within it. What properly esteems as the security of all the changes her people may at any time think proper others—that right, without which government to make in her constitution is a matter with which is anything but a republic is indeed but a tyneither Congress nor any department of the ranny--the right of having a voice in the legisGeneral Government can interfere, unless such lative department, whose laws bind them in perchanges make the State government anti-repub- son and in property ;-this, it is submitted, is a lican, and then it can only be done under the ob- state of things without example in a representa
ligation to guarantee tħat it be republican. tive republican government; and Congress, as ļ Whatever
be the extent of the power con- long as denies this right, is a mere despotism. ferred upon Congress in the 3d section, article 4, Citizens may be made to submit to it by force, of the Constitution, to admit new States—in what or dread of force, but a fraternal spirit and good manner and to what extent they can, under that feeling toward those who impose it, so important power, interfere in the formation and character to the peace and prosperity of the country, are of the Constitution of such States preliminary to not to be hoped for, but rather .unhappiness,
dissatisfaction, and enmity. There is but one given for reflection, that this decision has been a ground on which such conduct can find any ex- fortunate one for the whole country, they receive cuse-a supposed public necessity; the peril of ing the like benefits from it with those who 05'destruction to which the government would be posed them in the field and in the cause. * * subjected, if the right was allowed. But for My observations lead me to the conclusion such a supposition there is not, in the opinion that the citizens of the southern States are an:of the undersigned, even a shadow of founda- ious to return to self-government within the Union tion,
as soon as possible; that while reconstructing, The representatives of the States in which they want, and require protection from the Govthere was no insurrection, if the others were ernment; that they are in earnest in wishing to represented, would in the House, under the do what they think is required by the Governpresent apportionment, exceed the latter by a ment, not humiliating to them as citizens; and majority of seventy-two votes, and have a that if such a course was pointed out, they decided preponderance in the Senate. What would pursue it in good faith. It is to be redanger to the Government, then, can possibly gretted that there cannot be a greater commingarise from southern representation ? Are the ling at this time between the citizens of the two present Senators and Representatives fearful sections, and particularly of those intrusted with themselves ? Are they apprehensive that they the law-making power.' might be led to the destruction of our institu Secession, as a practical doctrine ever heretions by the persuasion, or any other influence, after to be resorted to, is almost utterly abanof southern members ? How disparaging to doned. It was submitted to and failed before themselves is such an apprehension. Are they the ordeal of battle. Nor can the undersigned apprehensive that those who may succeed them imagine why, if its revival is anticipated as posfrom their respective States may be so fatally sible, the committee bave not recommended an led astray? How disparaging is that supposi- amendment to the Constitution guarding against tion to the patriotism and wisdom of their con- it in terms. Such an amendment, it cannot be stituents. Whatever effect on mere party suc- doubted, the southern as well as northern States cess in the future such a representation may would cheerfully adopt. The omission of such have we shall not stop to inquire. The idea a recommendation is pregnant evidence that that the country is to be kept in turmoil, States secession, as a constitutional right, is thought to be reduced to bondage, and their rights under by the majority of the committee to be, practithe Constitution denied, and their citizens de-cally, a mere thing of the past, as all the proof graded, with a view to the continuance in power taken by them shows it to be, in the opinion of of a mere political party, cannot for a moment all the leading southern men who hitherto en be entertained without imputing gross dishonesty tertained it. The desolation around them, the of purpose
gross dereliction of duty to those hecatombs of their own slain, the stern patriotwho may entertain it. Nor do we deem it neces- ism of the men of the other States, exhibited by sary to refer particularly to the evidence taken unlimited expenditure of treasure and of blood, by the committee to show that there is nothing and their love of the Union so sincere and deepin the present condition of the people of the seated that it is seen they will hazard all to southern States that even excuses on that ground maintain it, have convinced the South that, as a denial of representation to them. . We content a practical doctrine, secession is extinguished ourselves with saying that in our opinion the forever. State secession, then, abandoned, and evidence most to be relied upon, whether regard- slavery abolished by the southern States theming the character of the witnesses or their means selves, or with their consent, upon what states, of information, shows that representatives from manlike ground can such States be denied all the southern States would prove perfectly loyal. the rights which the Constitution secures to We specially refer for this only to the testimony States of the Union ?, All admit that to do so of Lieutenant General Grant. His loyalty and at the earliest period is demanded by every conhis intelligence no one can doubt. In his letter sideration of duty and policy, and none deny to the President of the 18th of December, 1865, that the actual interest of the country is to after he had recently visited South Carolina, a great extent involved in such admission. North Carolina, and Georgia, he says: The staple productions of the Southern States
“ Both in travelling and while stopping, I saw are as important to the other States as to them. much and conversed freely with the citizens of selves. Those staples largely enter into the those States, as well as with officers of the army wants of all alike, and they are also most imwho have been among them. The following are portant to the financial credit of the Govern. the conclusions come to by me:
ment. Those staples will never be produced as "I am satisfied that the mass of thinking men in the past until real peace, resting, as it can of the South accept the present situation of af- alone rest, on the equal and uniform operation fairs in good faith. The questions which have of the Constitution and laws on all, is attained. heretofore divided the sentiments of the people to suppose that a brave and sensitive people of the two sections-slavery and State rights, will give an undivided attention to the increase or the right of a State to secede from the Union of mere material wealth while retained in a state --they regard as having been settled forever by of political inferiority and degradation is mere the highest tribunal, arms, that man can resort folly. They desire to be again in the Union, to to, I was pleased to learn from the leading men enjoy the benefits of the Constitution, and they whom I met that they not only accepted the de- invoke you to receive them. They have adopted cision arrived at as final, but that now, the smoke constitutions free from any intrinsic objection, of battle has cleared away and time has been and have agreed to every stipulation thought by