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not, all should not be consulted; if they are, they should be, and should be only because they The very fact, therefore, of such a submission concedes that the Southern States are, and never ceased to be, States of the Union.

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The idea that the war power, as such, has been used, or could have been used, to extinguish the rebellion, is, in the judgment of the undersigned, utterly without foundation. That power was given for a different contingency-for the conTested, 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, has 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 States of the confers it, an express provision is inserted to Union as they ever were. In further support of meet the exigency of a domestic strife or insurproposition, if it needed any, we may confi-rection. To subdue that, authority is given to dently appeal to the fact just stated, that the call out the militia. Whether, in the progress very measure recommended, a constitutional of the effort to suppress an insurrection, the amendment to be submitted to such States, furnishes such support; for, looking to and regarding the rights of the other States, such a submission has no warrant or foundation except upon the hypothesis that they are as absolutely States of the Union as any of the other States. It can never be under any circumstances a "profitless abstraction" whether under the Constitution a State is or is not a State of the Union. It can never be such an abstraction whether the people of a State once in the Union can voluntarily or by compulsion escape or be freed from the obligations it enjoins, or be deprived of the rights it confers or the protection it affords.

A different doctrine necessarily leads to a dissolution of the Union. The Constitution supposes that insurrections may exist in a State, and provides for their suppression by giving Congress the power to "call forth the militia' for the purpose. The power is not to subjugate the State within whose limits the insurrection may prevail, and to extinguish it as a State, but to preserve it as such by subduing the rebellion, by acting on the individual persons engaged in it, and not on the State at all. The power is altogether conservative; it is to protect a State, not to destroy it; to prevent her being taken out of the Union by individual crime, not, in any contingency, to put her out or keep her out. The continuance of the Union of all the States is necessary to the intended existence of the Government. The Government is formed by a constitutional association of States, and its integrity depends on the continuance of the entire association. If one State is withdrawn from it by any cause, to that extent is the Union dissolved. Those that remain may exist as a government, but it is not the very government the Constitution designs. That consists of all; and its character is changed and its power is diminished by the absence of any one.

A different principle leads to a disintegration that must sooner or later result in the separation of all, and the consequent destruction of the Government. To suppose that a power to preserve may, at the option of the body to which it is given, be used to destroy, is a proposition repugnant to common sense; and yet, as the late insurrection was put down by means of that power, that being the only one conferred upon Congress to that end, that proposition is the one on which alone it can be pretended that the Southern States are not in the Union new as well as at first.

rights incident to war as between the United States and foreign nations may not arise, is a question which in no way changes the character of the contest as between the Government and the insurrectionists. The exercise of such rights may be found convenient, or become necessary for the suppression of the rebellion, but the character of the conflict is in no way changed by a resort to them. That remains, as at first, and must from its very nature during its continuance remain, a mere contest in which the Government seeks, and can only seek, to put an end to the rebellion. That achieved, the original condition of things is at once restored. Two judicial decisions have been made, by judges of eminent and unquestioned ability, which fully sustain our view. In one, that of Amy Warwick, before the United States district court of Massachusetts, Judge Sprague, referring to the supposed effect of the belligerent rights which it was conceded belonged to the Government dur ing the rebellion, by giving it, when suppressed, the rights of conquest, declared:

"It has been supposed that if the Government have the right of a belligerent, then, after the rebellion is suppressed, it will have the rights of conquest; that a State and its inhabitants may be permanently divested of all political advan tages, and treated as foreign territory conquered by arms. This is an error, a grave and dangerous error. Belligerent rights cannot be exercised where there are no belligerents. Conquest of a foreign country gives absolute, unlimited sovereign rights, but no nation ever makes such a conquest of its own territory. If a hostile power, either from without or within, takes and holds possession and dominion over any portion of its territory, and the nation, by force of arms, expel or overthrow the enemy, and suppresses hostilities, it acquires no new title, and merely regains the possession of that of which it has been temporarily deprived. The nation acquires no new sovereignty, but merely maintains its previous rights.

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When the United States take possession of a rebel district, they merely vindicate their preexisting title. Under despotic governments confiscation may be unlimited, but under our Government the right of sovereignty over any portion of a State is given and limited by the Constitu tion, and will be the same after the war as it was before."

In the other, an application for habeas corpus to Mr. Justice Nelson, one of the judges of the

Supreme Court of the United States, by James | full enjoyment, of all her constitutional rights Egan, to be discharged from an imprisonment and privileges." to which he had been sentenced by a military commission in South Carolina, for the offence of murder alleged to have been committed in that State, and the discharge was ordered, and, in an opinion evidently carefully prepared, among other things, said:

Again, a contrary doctrine is inconsistent with the obligation which the Government is under to each citizen of a State. Protection to cach is a part of that obligation-protection not only as against a foreign, but a domestic foe. To hold that it is in the power of any part of the people "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 and 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 opposed rebellion, some seven months previously, and to it, enemies of the United States, having no 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 allemity with, its constitutional duties to the Union. giance, is as illegal as it would be flagrantly unIndeed, 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 misappre obeyed, 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 insurrec the 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 proper officer to give them 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. If functionaries, which was under the superinten- the Confederate States, by force of insurrection, lence 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 government, and allegiance necessarily assumes a continuing obligation to the government. Neither predicament was true, except upon the hypothesis that the old state of things continued. In other words, that the States, notwithstanding the insurrection, were continuously, and are now, States of the United States, and their citizens responsible to the Constitution and the laws. Second: what is there, then, in the present political condition of such States that justifies their exclusion from representation in Congress? Is it because they are without organized, governments, or without governments republican in point of form? In fact, we know that they have governments completely organized with legislative, executive, and judicial functions. We know that they are now in successful operation; no one within their limits questions their legality, or is denied their protection. How they were formed, under what auspices they were formed, are inquiries with which Congress has no concern. The right of the people of a State to form a government for themselves has never been questioned. In the absence of any re

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This opinion is the more authoritative than it might possibly be esteemed otherwise, from its being the first elaborate statement of the reasons which governed the majority of the Supreme Court at the last term in their judgment in the case of Milligan and others, that military commissions for the trial of civilians are not constitutional. Mr. Justice Nelson was one of that majority, and of course was advised of the grounds of their decision. We submit that nothing could be more conclusive in favor of the doctrine for which they are cited than these judgments. In the one, the proposition of conquest of a State as a right under the war to suppress the insurrection is not only repudiated by Judge Sprague, but, because of the nature of our Government, is considered to be legally impossible. "The right of sovereignty over any portion of a State will," he tells us, only be the same after the war as it was before." In the other, we are told "that the suppression of the rebellion restores the courts of the State," and that when her government is reorganized she at once is "in the full enjoyment, or entitled to the

striction that right would be absolute; any form | admission into the Union, no one has ever precould 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- be 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 alone upon one already A 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 governteed." 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 allairs 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 insurrecmehts are republican in form, what right has tions, continue to be States of the Union. Congress to interfere or deny their legal existence? Second. Conceding, for argument's sake, that the President's alleged interference was unauthorized, does it not, and for the same reason, follow that any like interference by Congress would be equally unauthorized? A different view is not to be maintained because of the difference in the nature of the powers conferred upon Congress and the President, the one being legislative and the other executive; for it is equally, and upon the same ground, beyond the scope of either to form a government for a people of a State once in the Union, or to expel such a State from the Union, or to deny, temporarily or permanently, the rights which belong to a State and her people under the Constitution.

Thirdly. If this is so, it necessarily follows that the rights of States under the Constitution, as originally possessed and enjoyed by them, are still theirs, and those they are now enjoying, as far as they depend upon the executive and judicial departments of the government. By each of these departments they are recognized as States. By the one, all officers of the government required by law to be appointed in such States have been appointed, and are discharging, without question, their respective functions. By the other they are, as States, enjoying the benefit, and subjected to the powers of that department; a fact conclusive to show that, in the estimation of the judiciary, they are, as they were at first, States of the Union, bound by the laws of the Union, and entitled to all the rights Congress may admit new States, but a State incident to that relation. And yet, 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 legis General 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 that it be republican.tive republican government; and Congress, as Whatever may be the extent of the power conferred upon Congress in the 3d section, article 4, of the Constitution, to admit new States-in what manner and to what extent they can, under that power, interfere in the formation and character of the Constitution of such States preliminary to

long as it denies this right, is a mere despotism. Citizens may be made to submit to it by force, or dread of force, but a fraternal spirit and good feeling toward those who impose it, so important to the peace and prosperity of the country, are not to be hoped for, but rather unhappiness,

dissatisfaction, and enmity. There is but one ground on which such conduct can find any excuse a supposed public necessity; the peril of destruction to which the government would be subjected, if the right was allowed. But for such a supposition there is not, in the opinion of the undersigned, even a shadow of founda

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The representatives of the States in which there was no insurrection, if the others were represented, would in the House, under the present apportionment, exceed the latter by a majority of seventy-two votes, and have a decided preponderance in the Senate. What danger to the Government, then, can possibly arise from southern representation? Are the present Senators and Representatives fearful of themselves? Are they apprehensive that they might be led to the destruction of our institutions by the persuasion, or any other influence, of southern members? How disparaging to themselves is such an apprehension. Are they apprehensive that those who may succeed them from their respective States may be so fatally led astray? How disparaging is that supposition to the patriotism and wisdom of their constituents. Whatever effect on mere party success in the future such a representation may have we shall not stop to inquire. The idea that the country is to be kept in turmoil, States to be reduced to bondage, and their rights under the Constitution denied, and their citizens degraded, with a view to the continuance in power of a mere political party, cannot for a moment be entertained without imputing gross dishonesty of purpose and gross dereliction of duty to those who may entertain it. Nor do we deem it necessary to refer particularly to the evidence taken by the committee to show that there is nothing in the present condition of the people of the southern States that even excuses on that ground a denial of representation to them. We content ourselves with saying that in our opinion the evidence most to be relied upon, whether regarding the character of the witnesses or their means of information, shows that representatives from the southern States would prove perfectly loyal. We specially refer for this only to the testimony of Lieutenant General Grant. His loyalty and his intelligence no one can doubt. In his letter to the President of the 18th of December, 1865, after he had recently visited South Carolina, North Carolina, and Georgia, he says:

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Both in travelling and while stopping, I saw much and conversed freely with the citizens of those States, as well as with officers of the army who have been among them. The following are the conclusions come to by me:

"I am satisfied that the mass of thinking men of the South accept the present situation of affairs in good faith. The questions which have heretofore divided the sentiments of the people of the two sections-slavery and State rights, or the right of a State to secede from the Union -they regard as having been settled forever by the highest tribunal, arms, that man can resort to. I was pleased to learn from the leading men whom I met that they not only accepted the decision arrived at as final, but that now, the smoke of battle has cleared away and time has been

given for reflection, that this decision has been a fortunate one for the whole country, they receiving the like benefits from it with those who opposed them in the field and in the cause.

My observations lead me to the conclusion that the citizens of the southern States are anxious to return to self-government within the Union as soon as possible; that while reconstructing, they want and require protection from the Government; that they are in earnest in wishing to do what they think is required by the Government, not humiliating to them as citizens; and that if such a course was pointed out, they would pursue it in good faith. It is to be regretted that there cannot be a greater commingling at this time between the citizens of the two sections, and particularly of those intrusted with the law-making power."

Secession, as a practical doctrine ever hereafter to be resorted to, is almost utterly abandoned. It was submitted to and failed before the ordeal of battle. Nor can the undersigned imagine why, if its revival is anticipated as possible, the committee have not recommended an amendment to the Constitution guarding against it in terms. Such an amendment, it cannot be doubted, the southern as well as northern States would cheerfully adopt. The omission of such a recommendation is pregnant evidence that secession, as a constitutional right, is thought by the majority of the committee to be, practically, a mere thing of the past, as all the proof taken by them shows it to be, in the opinion of all the leading southern men who hitherto entertained it. The desolation around them, the hecatombs of their own slain, the stern patriotism of the men of the other States, exhibited by unlimited expenditure of treasure and of blood, and their love of the Union so sincere and deepseated that it is seen they will hazard all to maintain it, have convinced the South that, as a practical doctrine, secession is extinguished forever. State secession, then, abandoned, and slavery abolished by the southern States themselves, or with their consent, upon what statesmanlike ground can such States be denied all the rights which the Constitution secures to States of the Union? All admit that to do so at the earliest period is demanded by every consideration of duty and policy, and none deny that the actual interest of the country is to a great extent involved in such admission. The staple productions of the Southern States are as important to the other States as to themselves. Those staples largely enter into the wants of all alike, and they are also most important to the financial credit of the Government. Those staples will never be produced as in the past until real peace, resting, as it can alone rest, on the equal and uniform operation of the Constitution and laws on all, is attained. To suppose that a brave and sensitive people will give an undivided attention to the increase of mere material wealth while retained in a state of political inferiority and degradation is mere folly. They desire to be again in the Union, to enjoy the benefits of the Constitution, and they invoke you to receive them. They have adopted constitutions free from any intrinsic objection, and have agreed to every stipulation thought by

the President to be necessary for the protection | To force negro suffrage upon any State by means and benefit of all, and in the opinion of the un- of a penalty of a loss of part of its representadersigned they are amply sufficient. Why ex- tion, will not only be to impose a disparaging act, as a preliminary condition to representa- condition, but virtually to interfere with the tion, more? What more are supposed to be clear right of each State to regulate suffrage for necessary? First, the repudiation of the rebel itself, without the control of the Government of debt; second, the denial of all obligation to pay the United States. Whether that control be ex for manumitted slaves; third, the inviolability erted directly or indirectly, it will be considered, of our own debt. If these provisions are deemed as it is, a fatal blow to the right which every necessary, they cannot be defeated, if the South State in the past has held vital, the right to were disposed to defeat them, by the admission regulate her franchise. into Congress of their representatives. Nothing is more probable, in the opinion of the undersigned, than that many of the southern States would adopt them all; but those measures the committee connect with others which we think the people of the South will never adopt. They are asked to disfranchise a numerous class of their citizens, and also to agree to diminish their representation in Congress, and of course in the electoral college, or to admit to the right of suffrage their colored males of twenty-one years of age and upwards, (a class now in a condition of almost utter ignorance,) thus placing them on the same political footing with white citizens of that age. For reasons so obvious that the dullest may discover them, the right is not directly asserted of granting suffrage to the negro. That would be obnoxious to most of the Northern and Western States, so much so that their consent was not to be anticipated; but as the plan adopt ed, because of the limited number of negroes in such States, will have no effect on their representation, it is thought it may be adopted, while in the southern States it will materially lessen their number. That these latter States will assent to the measure can hardly be expected. The effect, then, if not the purpose, of the measure is forever to deny representatives to such States, or, if they consent to the condition, to weaken their representative power, and thus, probably, secure a continuance of such a party in power as now control the legislation of the Government. The measure, in its terms and its effect, whether designed or not, is to degrade the southern States. To consent to it will be to consent to their own dishonor.

To punish a State for not regulating it in a particular way, so as to give to all classes of the people the privilege of suffrage, is but seeking to accomplish incidentally what, if it should be done at all, should be done directly. No reason, in the view of the undersigned, can be suggested for the course adopted, other than a belief that such a direct interference would not be sanctioned by the northern and western States, while, as regards such States, the actual recommendation, because of the small proportion of negroes within their limits, will not in the least lessen their representative power in Congress or their influence in the presidential election, and they may therefore sanction it. This very inequality in its operation upon the States renders the measure, in our opinion, most unjust, and, looking to the peace and quiet of the country, most impolitic. But the mode advised is also not only without but against all precedent. When the Constitution was adopted it was thought to be defective in not sufficiently protecting certain rights of the States and the people. With the view of supplying a remedy for this defect, on the 4th March, 1789, various amendments by a resolution constitutionally passed by Congress were submitted for ratification to the States. They were twelve in number. Several of them were even less independent of each other than are those recommended by the committee. But it did not occur to the men of that day that it was right to force the States to adopt or reject all. Each was, therefore, presented as a separate article. The language of the resolution was, that the following articles be proposed to the legislatures of the The manner, too, of presenting the proposed several States as amendments of the Constitution constitutional amendment, in the opinion of the of the United States, ALL OR ANY OF WHICH undersigned, is impolitic and without precedent. ARTICLES, when ratified by three-fourths of the The several amendments suggested have no con- said legislatures, to be valid to all intents and nection with each other; each, if adopted, would purposes as parts of the Constitution. The Conhave its appropriate effect if the others were re-gress of that day was willing to obtain either jected; and each, therefore, should be submitted as a separate article, without subjecting it to the contingency of rejection if the States should refuse to ratify the rest. Each by itself, if an advisable measure, should be submitted to the people, and not in such a connection with those which they may think unnecessary or dangerous as to force them to reject all. The repudiation of the rebel debt, and all obligation to compensate for the loss of slave property, and the inviolability of the debts of the Government, no matter how contracted, provided for by some of the sections of the amendment, we repeat, we believe would meet the approval of many of the southern States; but these no State can sanction without sanctioning others, which we think will not be done by them or by some of the northern States.

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of the submitted amendments-to get a part, if not able to procure the whole. They thought (and in that we submit they but conformed to the letter and spirit of the amendatory clause of the Constitution,) that the people have the right to pass severally on any proposed amendments. This course of our fathers is now departed from, and the result will probably be that no one of the suggested amendments, though some may be approved, will be ratified. This will certainly be the result, unless the States are willing practically to relinquish the right they have always enjoyed, never before questioned by any recog nized statesman, and all-important to their interest and security-the right to regulate the franchise in all their elections.

There are, too, some general considerations

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