Year: 1866

them thereto. What is there to dlstln-
guish the power thus asserted and eZer.
cised from the most absolute and intol-
cradle tyranny? Nor do these extra7a-
CANT and unjust claims on the part OF
Congress to powers and authority never
conferred upon the Government by the
Constitution find any warrant in the ar
guments or excuses urged in their be-
half. 1t is alleged:


l. That these States, by the act of re-
bellion, and by voluntarily withdrawing
their members from Congress, forfeited
their right to representation, and that
they can only receive it again at the
hands of the supreme legislative authori-
ty of the Government, on its own terms
and its own discretion. If representation
in Congress and participation in the
Government were simply privileges con-
ferred and hell by favor, this statement
might have the merit of plausibility but
representation is, under the Constitution,
not only expressly recognized as right,
but it is imposed as duty, and it is
essential, in both respects, to the ex-
istence of the Government and to the
maintenance of its authority. In free
Governments, fundamental and essential
rights cannot be forfeited, except against
individuals, by due process of law. Nor
can constitutional duties and obligations
be discarded or laid aside. The enjoyment
of rights may be, for time, suspended,
by the failure to claim them, and duties
may be evaded by the refusal to perform
them.


The withdrawal of their members from
Congress by the States which resisted the
General Government was among their acts
of finsurrection-was one Of the means
and agencies by which they sought to i'm
pair the authority and defeat the action OF
the Government. And that Act was an
nulled and rendered void when the insur-
rection itselfwa suppressed. Neither the
right representation, nor the duty to be
represented was in the least impaired by
the fact of insurrection, but it may have
been that, by reason of the insurection,
the conditions on which the enjoyment of
that right and the performance of that
duty for the time depended, could not be
fulfilled.


This was, in fact, the case. An insur-
gent power, in the exercise of usurped
and unlaw full authority, in the territory
under it's control, had prohibited that
allegiance to the Constitution and laws
of the United States which is made by
that fundamental law the essential con-
dition ofrepresentation in it's Government.
No man within the insurgent States was
allowed to take the oath to support the
Constitution of the United States, and,
as a necessary consequence, no man
could lawfully represent these States in
the councils of the Union. But this was
only an obstacle to the enjoyment of the
right and to the discharge of a duty. 1t
did not annul the one, nor abrogate the
other, and it ceased to exist when the
ursurpation by which it was created had
been overthrown, and the States had
again resumed their allegiance to the
Constitution and laws of the United
States.


2. But it is asserted, in support of the
authority claimed by the Congress now
in possession of power, that it flows d.
rectly from the laws of war; that it is
among the rights which victorious war
always confers upon the conquerors, and
which the conqueror may exercise or
waive. in his own discretion. To this
we rel ply, that the laws in question relate
solely, so far as the rights they confer
are concerned, to wars waged between
alien and independent nations, and can
have no place or force in this regard in
war waged by the Government to sup
press an insurrection Of its own people,
upon it's own soil, against its authority.
If we had carried on successful war
against any foreign nation, we might
thereby have acquired possession and ju.
risdiction of their soil, with the right to
enforce our laws upon their people, and
to impose upon them such laws and such
obligations as we might choose. But we
had before the war complete jurisdiction
over the soil of the Southern States, linn
tied only by our own Constitution. Our
laws we're the only national laws in force
upon it; the Government of the United
States was the only Government through
which those States and their people had
relations with foreign nations, and its
flag was the only flag by which they
were recognized or known anywhere on
the face of the earth. In all these res
poets, and in all other respects involving
national interest and right, our possess
ion was perfect and complete. It did not
need to be acquired, but only to be main.
tanned, and victorious war against the
rebellion could do nothing more than