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mittee of the Senate and House of Representatives, constituted under the concurrent resolution of the 13th of December, 1865, making it their duty to “inquire into the condition of the States which formed the so-called Confederate States of America, and to report whether they or any of them are entitled to be represented in either House of Congress, with leave to report by bill or otherwise,” not being able to concur in the measures recommended i. the majority, or in the grounds apon which they base them, beg leave to report: In order to obtain a correct apprehension of the subject, and as having a direct bearing upon it, the undersigned think it all important clearly to ascertain what was the effect of the late insurrection upon the relations of the States where it prevailed to the General Government, and of the people collectively and individually of such States. To this inquiry they therefore first address themselves. First, as to the States. Did the insurrection at its commencement, or at any subsequent time, legally dissolve the connection between those States and the General Government? In our judgment, so far from this being a “profitless abstraction,” it is a vităl inquiry. For if that connection was not o such States during the entire rebellion were as completely comonent States of the United States as they were i. the rebellion, and were bound by all the obligations which the Constitution imposes, and entitled to all its privileges. Was not this their condition ? The opposite view alone can justify the denial of such rights and privileges. That a State of the Union can exist without possessing them is inconsistent with the very nature of the Government and terms of the Constitution. In its nature the Government is formed of and by States possessing equal rights and powers. States unequal are not known to the Constitution. In its original formation perfect equality was secured. They were granted the same representation in the Senate, and the same right to be represented in the House of Representatives; the difference in the latter being regulated only by a difference in population. But every State, however small its population, was secured one Representative in that branch: Each State was given the right, and the same right, to particiate in the election of President and Vice Presient, and all alike were secured the benefit of the judicial department. The Constitution, too, was submitted to the people of each State separately, and adopted by them in that capacity. The convention which framed it considered, as they were bound to do, each as a separate sovereignty, that could not be subjected to the Constitution except by its own consent. That consent was consequently asked and given. The equality, therefore, of rights was the condition of the original thirteen States before the Government was formed, and such equality was not only not interfered with, but guaranteed to them as well in regard to the powers conferred upon the General Government, as to those reserved to the States or to the people of the States.
The same equality is secured to the States which have been admitted into the Union since
the Constitution was adopted. In each instance, the State admitted has been “declared to be one of the United States, on an equal footing with the original States in all respects whatever.” i The Constitution, too, so far as most of the powers it contains are concerned, operates directly upon the people in their individual and aggre. gate capacity, and on all alike. Each citizen, therefore, of every State owes the same allegiance to the General Government, and is enti. tled to the same protection. The obligation of this allegiance it is not within the legal power of his State or of himself to annul or evade. It is made paramount and perpetual, and for that very reason it is equally the paramount duty of the General Government to allow to the citizens of each State, and to the State, the rights secured to both, and the protection necessary to their full enjoyment. A citizen may, no doubt. forfeit such rights by committing a crime agains: the United States upon conviction of the same, , where such forfeiture by law antecedently passed is made a part of the punishment. But a State cannot in its corporate capacity be made liable to such a forfeiture, for a State, as such, under the Constitution, cannot commit or be indicted for a crime. No legal proceeding, criminal or civil, can be instituted to deprive a State of the benefits of the Constitution, by forfeiting as against her any of the rights it secures. Her citizens, be they few or many, may be proceeded against under the law and convicted, but the State remains a State of the Union. To concede that, by the illegal conduct of her own citizens, she can be withdrawn from the Union, is virtually to concede the right of secession. For what difference does it make as regards the result whether a State can rightfully secede, (a doc. trine, by-the-by, heretofore maintained by statesmen North as well as South,) or whether by the illegal conduct of her citizens she ceases to be a State of the Union ? In either case the end is the same. . The only difference is that by the one theory she ceases by law to be such a State, and by the other by crime, without and against law. But the doctrine is wholly erroneous. A State once in the Union must abide in it forever. She can never withdraw from or be expelled from it. A different principle would subject the Union to dissolution at any moment. It is, therefore, alike perilous and unsound. Nor do we see that it has any support in the |
measures recommended by the majority of the committee. The insurrectionary States are by these measures conceded to be States of the Union. The proposed constitutional amendment is to be submitted to them as well as to the other States. In this respecteach is placed on the same ground. To consult a State not in the Union on the propriety of adopting a constitutional amendment to the government of the Union, and which is necessarily to affect those States only composing the Union, would be an absurdity; and to allow an amendment, which States in the Union might desire, to be defeated by the votes of States not in the Union, would be alike nonsensical and unjust. The very measure, therefore, of submitting to all the States forming the Union before the insurrection a constitutional amendment, makes the inquiry, whether all at this time are in or out of the Union, a vital one. If they are
intents and purposes as completely
not, all should not be consulted; if they are, they should be, and should be only because they are. The very fact, therefore, of such a submission concedes that the Southern States are, and never ceased to be, States of the Union. Tested, therefore, either by the nature of our Government or by the terms of the Constitution, the insurrection, now happily and o Suppressed, has in no respect changed the relations of the States, where it prevailed, to the General Government. On the contrary, g are to all tates of the Union as they ever were. In further support of this proposition, if it needed any, we may confio appeal to the fact just stated, that the very measure recommended, a constitutional 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 ...i. 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 givin 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 extentis 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 ate insurrection was put down by means of that power, that being the only one conferred o 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 now as well as at first.
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 contingency of a conflict with other governments, an international conflict. If it had been thought that that power was to be resorted to to suppress a domestic strife, the words “appropriate to that object” would have been used. But so far from this having been done, in the same section that confers it, an express provision is inserted to meet the exigency of a domestic strife or insurrection. To subdue that, authority is given to call out the militia. Whether, in the progress of the effort to suppress an insurrection, the 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 during 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 advantages, and treated as foreign territory conuered by arms. This is an error, a grave and angerous 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. “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 Constitution, 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 Egan, to be discharged from an imprisonment 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: “For all that appears, the civil local courts of the State of South Carolina were in the full exercise of their judicial functions at the time of this trial, as restored by the suppression of the rebellion, some seven months previously, and by the revival of the laws and the reorganization of the State in obedience to, and in conformity with, its constitutional duties to the Union. #. long previous to this the provisional overnment had been appointed by the Presi#. who is commander-in-chief of the army and navy of the United States, (and whose will under martial law constituted the only rule of action,) for the special purpose of changing the existing state of things, and restoring the civil government over the people. In operation of this appointment, a new constitution had been formed, a governor and legislature elected under it, and the State placed in the full enjoyment, or entitled to the full enjoyment, of all her constitutional rights and privileges. The constitutional laws of the Union were thereby enjoyed and obeyed, and were as authoritative and binding over the people of the State as in any other portion of the country. Indeed, the moment the rebellion was suppressed, and the government growing out of it subverted, the ancient laws resumed their accustomed sway, subject only to the new reorganization by the appointment of the proper officer to give them operation and effect. This organization and appointment of the public functionaries, which was under the superintendence and direction of the President, the commander-in-chief of the army and navy of the country, and who, as such, had previously governed the State, from imperative necessity, by the force of martial law, had already taken place, and the necessity no longer existed.” 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
full enjoyment, of all her constitutional righa and privileges.” o Again, a contrary doctrine is inconsistent with the obligation which the Government is unde to each citizen of a State. Protection to each s, 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 peopa of a State, whether they constitute a majority or minority, by engaging in insurrection an: adopting any measure in its prosecution to make citizens who are not engaged in it, but opposed to it, enemies of the United States, having no right to the protection which the Constitution affords to citizens who are true to their alle giance, is as * as it would be flagrantly unjust. During the conflict, the exigency of the strife may justify a denial of such protection, and subject the unoffending citizen to inconvenience or loss; but the conflict over, the exigency ceases, and the obligation to afford him all the immunities and advantages of the Constitution, one of which is the right to be represented in Congress, becomes absolute and imperative. A different rule would enable the Government to escape a clear duty, and to commit a gross violation of the Constitution. It has been said that the Supreme Court have entertained a different doctrine in the prize cases. This, in the judg: ment of the undersigned, is a clear misapprehension. One of the questions in those cases was, whether in such a contest as was being waged for the extinguishment of the insurre: tion, belligerent rights, as between the United States and other nations, belonged to the former. The Court properly held that they did; but the Jarties engaged in the rebellion were desig. nated as traitors, and liable to be tried as traitors when the rebellion should terminate. It \the Confederate States, by force of insurrection, became foreign States and lost their character as States of the Union, then the contest was an international one, and treason was no more com: mitted by citizens of the former against the latter, than by those of the latter against the former. 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, notwithstand ing the insurrection, were continuously, and are now, States of the United States, and their citi. zens responsible to the Constitution and the laws. Second: what is there, then, in the present poli. tical condition of such States that justifies their exclusion from representation in Congress? Is it because they are without ooi govern. ments, 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 wo Congress has no concern. e right of the people of a State to form a government for themselves has never been questioned. In the absence of asy re
striction that right would be absolute; any form sould be adopted that they might determine upon. The Constitution imposes but a single restriction—that the government adopted shall be " of a republican form,” and this is done in the obligation to guarantee every Statesuch a form. It gives no power to frame a constitution for a State. It operates alone upon one alread formed by the State. In the words of the Federalist, (No. 44.) “it supposes, a pre-existing government of the form which is to be guaran. feed.” It is not pretended that the existing governments of the States in question are not of the required form. The objection is that the were not legally established. But it is confidently submitted that that is a matter with which Congress has nothing to do. The power to establish or modify a State government belongs exclusively to the people of the State. When they shall exercise it, how they shall exercise it, what provisions it shall contain, it is their exclusive right to decide, and when decided, their decision is obligatory upon everybody, and independent of all congressional control, if such government be republican. To convert an obligation of guarantee into an authority to interfere in any way in the formation of the government to be guaranteed is to do violence to language. If it be said that the President did ulegally interfere in the organization of such overnments, the answers are obvious: First. ; it was true, if the people of such States not only have not, but do not, complain of it, but, on the contrary, have pursued his advice, and are satisfied with and are living under the governments they have adopted, and those governmehts are republican in form, what right has 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. Congress may admit new States, but a State once admitted ceases to be within its control, and can never again be brought within it. What changes her people may at any time think proper to make in her constitution is a matter with which neither Congress nor any department of the General Government can interfere, unless such changes make the State government anti-republican, and then it can on | be done under the obligation to guarantee that it be republican. W. 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
admission into the Union, no one has ever pretended that when that is had, the State can again be brought within its influence. The power is exhausted when once executed, the subject forthwith passing out of its reach. The State admitted, like the original thirteen States, becomes at once and forever independent of congressional control. A different view would change the entire character of the Government as its framers and their contemporaries designed and understood it to be. They never intended to make the State governments subordinate to the General Government. Each was to move supreme within its own orbit; but as each would not alone have met the exigencies of a government adequate to all the wants of the people, the two, in the language of Mr. Jefferson, constituted “co-ordinate departments of one single and integral whole;" the one having the power of legislation and administration “in affairs which concerned their own citizens only;” the other, “whatever concerned foreigners, or citizens of other States.” Within their respective limits each is paramount. The States, as to all powers not delegated to the General Government, are as independent of that government as the latter, in . to all powers that are delegated to it, is independent of the governments of the States. The proposition, then, that Congress can, by force or otherwise, under the war or insurrectionary or any other power, expel a State from the Union, or reduce it to a territorial condition and govern it as such, is utterly without foundation. The undersigned deem it unnecessary to examine the question further. They leave it upon the observations submitted, considering it perfectly clear that States, notwithstanding occurring insurrections, continue to be States of the Union. 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 .# 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 incident to that relation. And yet, so far they are denied that right which the Constitution properly esteems as the security of all the others—that right, without which government is anything but a republic—is indeed but a tyranny—the right of having a voice in the legislative department, whose laws bind them in person and in property –this, it is submitted, is a state of things without example in a representative republican government; and Congress, as 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
from their respective States may be so fatally
How disparaging is that supposition to the patriotism and wisdom of their constituents. hatever 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 o 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 o 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: “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 af. %. 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
led astray ?
of battle has cleared away and time has been
by the majority of the committee to be, practi.
cally, 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 en. tertained it. The desolation around them, the hecatombs of their own slain, the stern patriot. ism of the men of the other States, o unlimited expenditure of treasure and of blood, and their love of the Union so sincere and deep. seated 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 them. selves, or with their consent, upon what states. manlike 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 com: sideration of i. 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 3.S. important to the other States as to them. selves. Those staples largely enter into the wants of all alike, and they are also most im: portant to the financial credit of the Govern. ment. 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 melo folly. They desire to be again in the Union, to ; the benefits of the Constitution, and the invoke you to receive them. They have adopte
constitutions free from any intrinsic objection, and have agreed to every stipulation thought by
The omission of such a recommendation is pregnant evidence that