Year: 1866




t while it existed, did not deprive it of it
5 right of representation. But thus ia
those States have been denied, as States


their representation in Congress withou
question as to the qualifications of tn
J individual members, or the regularity o
, their election.


1t will be difficult to establish posi-
ton that portion of the Senate and thr


House, which have thus rejected tht


representation of a part of the States az


States, is legally constituted Congress


under the Constitution. They, of course


have the power which the Constitution


gives them-the Senate to reject any and


all such members, individually, for the


reason that they do not represent their


several States the House, that they dc


not represent their appropriate districts


The Constitution defines in express terms


the powers of each House over the mem


bers who offer themselves for recogni-
ton.


The I'd section of the 1st article Of


the Constitution provides that the


House of Representatives shall be COM
posed of members chosen every second


year by the people of the several States, VI


that is to say, of each and all Of the
States. To this there is no exception
and no limitation. It includes States
which have been in revolt as well as those
which have been always loyal.


Another clause of the same article
| provides that when vacancies happen in
the representation from any State, the


Executive authority thereof shall issue
an order for an election. Here is no
qualification, no requisite condition of
the State to entitle it to its representa-
ton. How does any portion of Congress,
or committee selected by part ofCon-
gress, acquire the power to lay down
conditions and deny representation to
States that do not conform to them2


The third section provides that the
Senate Of the United States shall be
composed of two Senators from each
State, chosen by the Legislature thereof
for six years.


The fifth article provides that no
State without its consent shall, even by
an amendment of the Constitution, be de-
prived of its equal suffrage in the Senate. Z"
So clear is the construction of the Con
stilHtion, so fixed the purpose of the
Convention, that even an amendment of
the Constitution would be void, that
should attempt to deprive State for a
single day, under any conditions, of its
due representation in that body.


But the Constitution makes ample
provision for the prevention of illegal in
trusion in either of those bodies, and
puts it in the power of each to exclude
from itself all Members and Senators who
are unfit from any cause, national or
moral, for want Of due election, due Ger
tifcate, defect of loyalty to the Union or
moral character, to hold their places in
either of those bodies.


Hence it is very clear to my mind that
the exclusion of States as States for any
reason, supposed or alleged, is violation
of their constitutional privileges. The
members who may be in possession Of
the Senate Chamber and House of Repre-
sentatives have the same right to assume
that New York as that Georgia is unfit
to be represented until it complies with
their prescribed acquisitions and if they
may exclude eleven States they may ex-
clude twenty, and each will affect alike
the constitutional Legitimacy of the body, |
which thus lays down conditions for ad-
mission and refuses it to those Who do
not comply with those conditions. The !
wrong would be more glaring if major
ity were excluded, but the principles
would be the same.


It may be said that in the Senate
there could not bea constitutional quorum
if twenty were excluded, but what of
that? Admit the binding efficacy of the
and there is an end of the



With view to the present and future
quiet of the country, I am anxious that
The present state of things should cease
To- exist.


Laws formally enacted by the members
md certified, approved by the officers Of
he two Houses and the President, must
De recognized by our courts without in
Iuiring into the regular constitution of
ZACH of the powers enacting them, but
whatever comes in the form of law
from a single branch Of the
aw making power, is in my judgment
,pen to examination. As for example,
but one-third of the States should meet
nd take possession of the halls of the
'enate and House of Representatives,
nact resolves in the form of law without
xecutive sanction or recognition, it
7ould be absurd to say that the courts
7ould be bound to hold that such re- {
Olives were law, without having power {
o inquire into the constitutionality of /
he assembly enaeting them. This is {
,ut an fortiOri case, the principle is
recisely the same with that before US T
t is quite immaterial whether one-third 6
r two-thirds of the States be excluded !
rom participation in the enactment G
Admit the right of inquiry into the Con- t
titution of the enaeting body in one t
ase the same right follows in the other, e
nd the ilIegitimacy in the one case is as t
lear as in the other. This difficulty ap- C
lies to the Civil Rights Bill, to the last 4
'reedmen's Bureau Bill and to the Con i
titutional Amendment d
This objection, together with the con s
titutiOnal difficulties in the several bills, Il
an be brought before the courts, and it 4
not too much to say that their decision ei
IN be doubtful on that point, if on that al
.one, On such reflection as 1 can give


7 think these euactments would be oi
,cb and all of them held void. ju
This, of course, does not apply TO &C