Year: 1866

any kind, but this duty of choosing repre-
sentatives is imposed upon the people of
each and every State alike, without dis
tinction, or the authority to make distinc-
tions among them, for any reason or upon
any grounds whatever. And in the Sen
ate, SO careful is the Constitution to secure
to every State the right of representation,
it is expressly provided that "no State
shall, without its consent, be deprived of
its equal suffrage" in that body, even by
an amendment of the Constitution itself


When, therefore, any State is excluded
from such representation, not only is the
right of the State denied, but the constitu.
tional integrity of the Senate is impaired,
and the validity of the government itself
is brought in question. But Congress at
the present moment thus excludes from
representation in both branches of Con-
gress, ten States of the Union, denying
them all share in the enactment of laws by
which they are to be governed, and all par
ticipation in the election of the rulers by
which those laws are to be enforced. In
other words, Congress in which only
twenty six States are to be represented, as,
serts the right to govern, absolutely and in
its own discretion, all the thirty-six States
which compose the Union-to make their
laws and choose their rulers, and to ex-
cludc the other ten from all share in their
own government until it sees fit to admit


them thereto. What is there to distinguish


the power thus asserted and exercised from


the most absolute and intolerable tyranny


Nor do these extravagant and unjust


claims on the part Of Congress to power
and authority never conferred upon the


government by the Constitution find any


warrant in the arguments or excuses urged


on their behalf. 1t is alleged,


First. That these States, by the act of
rebellion and by voluntarily Withdrawing


their members from Congress, forfeited
their right of representation, and that they
can only receive it again ut the hands of
the supreme Legislative authority of the
government, on its own terms and at its
own discretion. If representa- in Con


gress and participation in the government


we're simply privileges conferred and held
| by favor, this statement might have the


merit of plausibiity. But representation
is under the Constitution not only express
ly recognized as right, but it is imposed
| as duty; and it is essential in both as
poets to the existence of the government
| and to the maintenance of its authority. In
free governments fundamental aud essen
| tlal rights cannot be forfeited, except
against individuals by due process of law :;
| nor can constitutional duties and obliga
tions be discarded or laid aside. The en-
| joyment of rights may be for time sus


pended by the failure to claim them, and


duties may De evaded by the refusal to per.
form them. The withdrawal of their mem


bers from Congress by the States which


resisted the general government was among
their acts of insurrcction-was one Of the


means and agencies by which they sought


to impair the authority and defeat the ac


tion OF the government; and that act was
| annuled and rendered void when the insur.


rection itself was suppressed. Neither the
right OF representation nor the duty to be
represented was in the least impaired by
the fact OF insurrection; but it may have
been by reason of the insurrection the con-
ditions on which the enjoyment of that
| right and the performance Of tha, duty for


the time depended could not be fulfilled.
This was, in fact, the case An insurgent
| power, IN the exercise of usurped and un-
ia"iui Au'hoiity III tuc teTTltOTy unuer 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 condition OF representa-


ton in its government. No man within


the insurgent States was allowed to take


the oath to support the Constitution Of the
United States, and, as necessary conse.


quence, no man could lawfully represent


those States in the councils of the Union.


But this was only an obstacle to the enjoy


ment of the right and to the discharge of


duty-it did not annul the one nor abro.


gate the other; and it ceased to exist when


the usurpation by which it had been Gre


ated had been overthrown, aud the States


had again resumed their allegiance to the
Constitution and laws of the United States
Second. But it is asserted, in support OF


the authority claimed by the Congress


now in possession of power, that it flows


directly from the laws of war; that it is


among the rights which victorious war al.


ways conters upon the conquerors, and


which the conqueror may exercise or


waive in his own discretion. To this we


reply, that the laws in question relate


solely, so far as the rights they confer are
| concerned to wars waped between alien