ment alone. The powers of conqueror are not stitutional form of government is thereby pracso vested in the President that he can fix and tically destroyed, and its powers absorbed in regulate the terms of settlement and confer the Executive. And while your committee do congressional representation on conquered reb-not for a moment impute to the President any els and traitors. Nor can he, in any way, qualify enemies of the Government to exercise its lawmaking power. The authority to restore rebels to political power in the Federal Government can be exercised only with the concurrence of Ninth. The necessity of providing adequate all the departments in which political power is safeguards for the future, before restoring the invested; and hence the several proclamations of surrectionary States to a participation in the the President to the people of the Confederate direction of public affairs, is apparent from the States cannot be considered as extending beyond bitter hostility to the Government and people of the purposes declared, and can only be regarded the United States yet existing throughout the as provisional permission by the commander-in-conquered territory, as proved incontestably by chief of the army to do certain acts, the effect the testimony of many witnesses and by unand validity whereof is to be determined by the disputed facts. constitutional government, and not solely by the executive power.

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.

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 of leave to report: 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 against 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 component States of the United States as they were before 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 participate in the election of President and Vice President, 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

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 doctrine, 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 respect each 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 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

ot, all should not be consulted; if they are, The idea that the war power, as such, has been ey 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,

:e.

ission concedes that the Southern States are, utterly without foundation. That power was nd never ceased to be, States of the Union. given for a different contingency-for the conTested, therefore, either by the nature of our tingency of a conflict with other governments, an overnment or by the terms of the Constitution, international conflict. If it had been thought le insurrection, now happily and utterly sup- that that power was to be resorted to to suppress ressed, has in no respect changed the relations a domestic strife, the words "appropriate to that I the States, where it prevailed, to the General object" would have been used. But so far from overnment. On the contrary, they are to all this having been done, in the same section that tents and purposes as completely States of the confers it, an express provision is inserted to nion as they ever were. In further support of meet the exigency of a domestic strife or insuris proposition, if it needed any, we may confi-rection. To subdue that, authority is given to ently appeal to the fact just stated, that the call out the militia. Whether, in the progress ery measure recommended, a constitutional of the effort to suppress an insurrection, the mendment to be submitted to such States, furishes such support; for, looking to and regardag the rights of the other States, such a subission has no warrant or foundation except pon the hypothesis that they are as absolutely tates of the Union as any of the other States. never be under any circumstances a profitless abstraction" whether under the Contitution 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 volunarily or by compulsion escape or be freed from he obligations it enjoins, or be deprived of the ights it confers or the protection it affords.

t can

A different doctrine necessarily leads to a lissolution 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 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 now as well as at first.

that

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 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.

"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 | full enjoyment, of all her constitutional right 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 unde to each citizen of a State. Protection to each a part of that obligation-protection not only a against a foreign, but a domestic foe. To hoid 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 alle mity with, its constitutional duties to the Union. giance, is as illegal as it would be flagrantly un Indeed, 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 vio it, 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 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 the 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, 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 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

"

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, 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

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 affairs 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 governments, the answers are obvious: First. If 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 only be done under the obligation to guarantee that it be republican. 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

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 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 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,