Year: 1866

ana authority never conferred upon the
government by the Constitution find any
warrant in the argument or excuses urged
on their behalf. 1t is alleged,


First. That these States, by the act of
rebellion and by voluntarily withdraw
ing their members from Congress, for
feited their rights of presentation, and
that they can onl ly receive it again at the
hands of the supreme legislative authority
of the government, on its own terms and
at its own discretion. If representation
in Congress and participation in the gov
ernment were simply privileges conferred
and held by favor, this statement mig ght
have the merit of plausibility. But rep
resentation is under the Constitution not
only expressly recognized as right, but
it is imposed as duty; and it is essen
! tial In both aspects to the existence of
the government and to the maintenance
of its authority. In free governments
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 with
| drawal Of their members from Congress
| by the States which resisted the general
government was among their acts of in
surrection-was one of the means and
agencies by which they thought to impair
the authority and defeat the action of the
government; and that act was annulled
| L IL.


itself was suppressed. Neither the right
of representation nor the duty to be rep
resented was in the least impaired by the
fact Of insurrection; but it may have been
that by reason of the insurrection the
conditions on which the enjoyment of
that right and the performance of that du-
ty for the time depended could not be
fulfilled. This was, in fact, the case
An insurgent power, in the exercise of
usurped and unlawful authority in the
territory under its 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 representation In its govern
ment. No man within the insurgent
| States was allowed to take the oath to
support the Constitution of the United
| States, and, as necessary consequence, no
man could lawfully represent those States
in the councils of the Union. But this was
only an obstacle to the enjoyment Of the
right and to the discharge of duty-it
did not annul the one nor abrogate the
other; and it ceased to exist when the
usurpation by which it was created had
been overthrown and the States had again
resumed their allegiance to the Constitu-
tion and laws of the United States.


Second. But it is asserted, in support
Of the authority claimed by the Congress
now in the possession Of power, that it
flows directly from the laws of war; that
war confers 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 waged between alien
and independent nations, and can have
no place or force, In this regard, in a war
waged by a government to suppress an
insurrection Of its own people, upon its
own soil, against its authority. If we
had carried on successful war against any
foreign nation, we might thereby have ac-
quired possession and jurisdiction 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, limited only by our
own Constitution. Our laws were the
only national laws in force upon it, The
government Of the United States was the
only government through which those
I States and their people had relations with
foreign nations, and its flag was the only
flag by which they were recognized or
known any where on the face of the earth.
In all these respects, and in all other res
poets involving national interests and
! rights, our possession was perfect and
complete. 1t did not need to be acquir-
ed, but only to be maintained; and vic
torious war against the rebellion could do
nothing more than maintain it. j could
only vindicate and re-establish the dis
puted supremacy of the Constitution. 1t
could neither enlarge nor diminish the
authority which that Constitution con-
fers upon the government by which it
was achieved. Such an enlargement or
abridgement Of constitutional power can
be affected only by amendment of the
Constitution itself, and such amendment
can be made only in the modes which
the Constitution itself prescrbes. The
claim that the suppression of an insur-
rection against the government gives ad-
ditional authority aud power to that gov
ernment, especially that it enlarges the
jurisdiction of Congress and gives that
body the right to exclude States from
representation in the national councils,
without which the nation itself can have
no anthnritu and no nxiStnnna saems to