Mr. SHELLABARGER. Mr. Chairman, I shall inquire whether the constitution deals with States. I shall discuss the question whether an organized rebellion against a Government is an organized “State” in that Government; whether that which. cannot becomea “ State until all its officers have sworn to support the constitution, remains a State after they have all sworn to overthrow that constitution; and if I find it does continue to be a State after that, then I shall strive to ascertain whether it will so continue to be agoverument, a State, afier, by means of universal treason, it has ceased to haveany constitution, laws, Legislature, courts, or citizens in it. If in debating these questionsl debate axioms, my apology is that there are no other questions to debate in “reconstruction.” If in the discussion I make selfevident things obscure or incomprehensible, my defense shall be that I am conforming to the usages of Congress. I will not inquire whether any subject of this Government, by reason of the revolt, passed from under its sovereignty or ceased to owe it allegiance, nor whether any territory passed from under that jurisdiction, because I knew of no one who thinks that any of these things did occur. I shall not consider whether, by the rebellion, any State lost its territorial character or defined boundaries or subdivisions, for I know of no one who would obliterate these gooQ graphical qualities of the States. lhese questions, however much discussed, are in no practical sense before Congress. wasr is nsvonr: concusss. What is before this congressby far the most momentous constitution a question ever here consideredI at once condense and affirm in a sin 10 sentence. this under our constitution possible to, and the late rebellion did in fact so overthrow and usurp in the insurrectionnry States the loyal State governments as that, during such usur pation, such States and their people ceased to have any of the rivhts or powers of government as States of this nion; and this loss of the rights and powers of government was such that the U.S. may and ought to assume and exercise local powers of the lost State governments, and may control the readmission of such States to their powers of government in this Union, subject to and in accordance with the Obligation to “ guaranty to each State a RFG.” This great question I proceed to consider. van, or run LLW or nsrrons, Is A sure? At the very foundation of this discussion lies the question, what make u the necessa elements of every State in this Union? at properties are they which, if anyone be lost by a State, it ceases to be entitled to exercise the powers and demand the rights of a political and governing member of that Union? The argument I now derive from “ public law" is really identical with the one shall) next ndduce, and shall base upon the express terms of the constitution. In this argument. assuming, as I do, 2 axioms of our law; 1st, that the law of nations is part of your Constitution, (Const, art. 1, sec. 8, clause 10) and 2nd, that such constitution is to its States, at least, as much “supreme law” as the international code is law to the civilized States which are under its swayI here only show that these lawdefying communities in reellion cannot be “States, ” unless our Union has lowered and dobased the worlds “legal idea ” of a “ State.” What, then, is required to constitute a State by the law of nations? We answer: 1. “A fixed abode and definite territo be longing to the people who occupy it.” (hea ton, 33. 2.” society of men united together for the purpose of promotin theirmutual safety and advantage by their comined strength.” (Ib. 32.) 8.” The legal idea of aState, necessarily implies that of habitual obedience of its members tqb those in whom the superiority is vested. ”. 33. (Thist ird necessary element of a State is the only important one in this discussion. Hence, Ia d the following high authorities: Grotius, (book 3, chapter 3, section 2) says: "The law. especiallythatotnations, is in the State as the soul is in that of the human body, for that being taken mm 1! mm to bea Slate.” Burlamaqui, (volume 2, page 25) in defininga State says: “It is a multitude of people united togetherby a common interest and common laws, towinchtheyaub mil with one accord.” I might add to these all the writers on public law for centuries, in confirmation of what is self evident without roof, that there can be no State where the people do not habitually obey the laws. For 400 years the unanimous conscience and common sense of the civilized world has refused to recognize the existence of a people who were habitually disobedient to their own laws, or the law of nations. such a geople is blotted out. Yow, surely, if habitual obedience to law “was necessary to the legal idea of a State, ” even under the vague an general recepts of the international code, it will not e insisted that habitual, persistent, and universal diso bedience will be tolerated by the welldefined, express, and rigorous provisions of the American constitution in the citizens of one of its States. Shall that position be tolerated which admits that the law of nations will expel from its union and blot from existence an habitually lawless people, and yet the law of our Union permitsuch a State to govern it? Shall a Union, whose constitution and laws in every sin le great attribute of national sovereignty are e supreme law of these States and their people, recognize and be ruled by a people who unanimously, habitually, persistently, and for years disobey and defy these laws? Can it be that for 4 centuries the united conscience and judgment of the civilized world shall prohibit the existence upon the earth of such a monster as a State whose people are habitually lawless and then shall it be eft for our “more crfect nion” toestablish “ States” which, alt on by they cannot commence their existence out every officer and minister of that State shall swear to support the constitution of the U.S., as e supreme law of the land, yet shall continue to be Statesafter every officer of such State had discarded such oath and eve inhabitant had, for years, defied and discarde these “ supreme laws?” In the lights of the public law of the world let this Congress answer the starth ng question, whether an organized rebellion has come to bean o nized “State” whether “habitual” treason as come to be habitual obedience to law, ” and whether the legal “idea of a State” has come to be a synon m for chaos, in which are commingled, in unaleviated political ruin, the absolute overthrow of all its “supreme laws, ” the wreck of all loyal constitution s, laws, and forms of government, and the death orexile of every inhabitant who admitted the existence of such loyal State! Surely, Mr. Chairman, it is not too much to say that even under the settled precepts of public law those 11 districts, called “confed crate States, ” ceased to be States. In them, during so many dark years, there was no obe dieuce to law except the law which compelled the defiance of all “supreme laws 3" there was no government except that one which consisted in enforcing disloyalty to Government; there was no observance of the “law of nations, ” unless that is to be found in indiscrimi nate and remorscless assassination or murder of every loyal man whom their treason could reach either by means of the dagger, the tor pedo, the poisoned food, the bandit, the violations of truce, or the systcinatized destruction of prisoners of war. Their bodypolitic was one gi ntic treason made up of 11 organized reellions, comined into one by the force of a relentless military despotism. But, sir, the unexampled magnitude of these interests involved impel me on to what are, if possible, more conclusive arguments. I go from the public law to the constitution. wan IS A srnn or nus omen? Now we proceed to inquire what, if more, anylthing is required to make a State of this nion than is requisite to constitute a State under the law of nations. Brazil is a State, but is not a State of this Union. That which is required to be addedto the properties which belong to every State, in the sense of the international law, in order to constitute a State of our Union, is 1. Its citizens must owe, acknowledge, and render supreme and habitual allegiance and obedience to the constitution, laws and treaties of the U.S. in all Federal matters these being the supreme laws to the States and their citizens. (constitution. article 6.) 2. All “the members of the State Legislatures, and its executive and judicial officers, shall be bound by oath or affirmation to support the constitution ” of the U.S. (Ar ticle 6.) 3. That the Ul States shall have so “ admitted it into this Union” (article 5, section 3) as to have assumed “to guaranty to it a RFG, and to protect it against invasion, and, ” on application, “against domestic violence.” 4 and by such recognition and “admission into this Union” to have secured to it, as a bodypolitic, or “State, ” certain rights of articipation in the control of the Federal government; which rights I shall name hereafter. (See also 1 Bishop on Criminal Law, sections 128 to 137, inclusrve.) No one who can read the constitution will deny that each State in this Union must have every one of these reerties before it can commence to exist in the nion; because the constitution so declares. Now the question I consider is, whether it shall continue to be a State, in the sense that it holds the powers and rights of a State, after it has lost Every property which it must have before it could commenceto exist in the Union. DOES THE CONSTITUTION DEAL WITH STATES? The Gentfrom NewYork [ML RAY MOND] says: “The constitution does not deal with Statesexcept in one or 2 instances. as the election of members of Congressand the election of electorsof President and VEEP.” This statement involves an error both of fact and law which, considering its highly intelligent and patriotic source, isnmazing. filow, sir, reading uglish will correct this error. Turn to the constitution. It deals with States, in the way of imposing restraints and obligations upon them as States, in the following matters: reg ulating commerce among the States; requiring Representatives, also U.S. Senators, to reside in their respective States; prohibiting States from entering into any treaty. alliance, or confederation, coming money, emitting bills of credit, making anything but gold and silver coin a tender for debt; passinIg any bill of attainder, expostfacto law, or law impairing the obligation of contracts; from taxing imports or exports without consent of Congress; from laying tonnage duty; from keeping troops or ships of war in time of peace; from entering into any compact with another State or foreign Power; from engagin in war unless invaded or in imminent dangcrt ereof; from refusing to give full faith to records, kc., of other States; from refusing to surrender fugitives from justice or labor in requiring States to be tried in the courts of the U.S.; requiring all their Officers to take an oath to en port the Constitution; requiring them to ay States proportion of direet taxes; in prohi iting “either State from conferring any other emolument upon the President than his salary; in requiring them to furnish, at command of the President, their militia; and in subordinating their “judges, ” “ constitutions, ” and “laws to the Constitution, laws, and treaties of the U.S. as “the supreme law of the land.” It secures rights and confers powers upon the States as States in each of the following respects. It secures to each the right to elect at least one Representative, to elect 2 Senators, to cast one vote inratifying constitutional amendments and in calling a convention to make such amendments; to cast one vote in electing a President in the House, to apoint in such manner as the legislature thereog may direct elect ors to elect a resident and VEEP, to fill by apointment vacancies in Congress, to demand that “in the regulation of commerce no preference shall be given to the ports of one State over those of another, ” in securin equal immunities to their rcspeetive citizens, in having arantied to them republican governments, in being protected against insurrection and do mestic violence, in securing them from being divided, &c., and in enablin them to define the qualification of electors for U.S. officers by fixin that of the most numerous branch of the State ie slatures. My object, Mr. Chairman, in reciting these 50 or more supremely important provisions of the constitution, in every one of which it is evident, both by the nature and express terms of the provisions themselves, and by the innumer able adjudications of the courts, that the constitution “deals with” the States, as such, was not the frivolous one of showin that there were more than “one or two” of iesc. My purpose was the higher one of showin how base ess that argument was which was used upon the assertion that the constitution did not eal with States but individuals only, and that, therefore, not the States, but only individuals could lose their rights under sue constitution. I wanted not only to show the argument baseless but that its precise opposite is the exact truth. I wanted to show that the very body, soul, life, and essence of the constitution is penetrated, pervaded, and characterized by and with this recognition of the States, and of their high powat. era as such. I wanted to bring into VICW the momentous and controllin fact which disposes of this high constitution s. question that the States are not only “dealt with” by the Conditution, but that their powers as States in our Government are absoliitel vital and I separated the obligations an restraints imposed upon the States and their officers from the conferments of rights and powers upon them, that it might appear to all men and to the very children who can read their constitution, that, in this marvelous great scheme of Government, as. in every otherwise human Government, as well as in Gods, the enforcements of oblition are coupled With and inseparable from the enjoyment of rights; that prescribed qualifieahons for the attainment of power must o possessed and proceed, and are inseparable, from the exercise of power. I wanted to show that there could be, under the constitution, none of the rights or (powers of a State where there were recognize none of the obligations or duties of a State. Sir, how long may this nation survive with a Senate elected by rebel Legislatures“ or with treaties made by Senators chosen by rebel rights to rebel districts. States; or with a President selected by electors chosen by the Legislatureof SCarolina; or with a President elected in a HoRep where each rebel State casts one vote; or with a HoRep elected by electors whom a rebel legislature would authorizeto vote; or with officers over U.S. forces appointed by rebel governors; or with such constitutional amendments as would be ratified by rebel legislatures or with a traitor for presient whom you could only remove by the impeachment of a Senate elected by rebel legislatures; or with such foreign ministers and other officers of the U.S. as such a Senate would confirm; or with a prohibition upon your closing the ports of the e even rebel States to a commerce supplying them with all the supplies of war, unless you also closed all the ports of the other States? Sir, if the recital of these powers which the States, as such, hold in governing this Union does not prove that a State in rebellion, and whose government and people are in actual hostility to the U.S., is not a component part of this Union, during the continuance of such rebellion, for the purpose of exercising any power, then such recitall does prove other things. It proves that “ Independenee Hall” was a madhouse from the Mt of May to the 17th of September, 1787; and that the madmen there succeeded in devising a framework of Government embodying in it a larger number of separate and fatal instruments of selfs Laughter than was ever combined in a Government before, or than was ever dreamed by men who make Utopins, or by them who form governments in Bedlam. coxcnnss ms asserts!) THAT REBEL srsrss am no RIGHTS As STATES. I admit that the action of this Government was not, at all times during the war, harmoni ous nor consistent upon the matter of according strange, indeed, if all such action, done as it was, in the midst of the awful events of such wars, revolutions, and breakings up of the systems of governments, had been consistent upon any subject. Besides, as mere measures of war there was constant temptation to err, if at all, in the direction of ueeordm g to loyalty in the insurrectionary districts every possible protection and power, to the end that it might be developed into support of a Government stag gering to its fall under the blows of treason. But still the most solemn and deliberate netion of your Government in all its Depts, and recently all its actions, proceeds upon the assurntion that these rebel States he lost all the rights of States. Among these acts may bementioned those of July 13, 1861, and 30th of same month. These have been held to be acts “ regulating commerce, ” (11 American Law Register, 419) and they close the ports of the rebel States to all commerce and capture their ships upon the seas and yetif these southern ports were ports of States having the rights of States. you could not only not close them “in regulating commerce, ” but you could give no port any pref erence over them. Again, in every revenue and tariff act which you passed in regulating commerce and the revenue since the war be gan you have not only “given preferences” net the southern ports, but you have provided for their being totally shut to all commerce. Could you previde in a turiff bill that the orts of NewYork shall be open, and those of assachusetts closed? These are only examples. POSITION or rm: Passwsxr. The President has assumed that the rebel States ceased to be States in the sense I am considering. JeffersonDavis was captured May 9, 1865; and the last army of the rebellion was surren dered by Kirby Smith to General Canby, 26th of May, 1865. Then the military power of the rebellion was extinct, and actual war was ended, and the necessity for resort tomore war powers and expedients ceased. Then, too, the It would have been i laws and constitutions and powers of State governments of these States sprang into life and force it they were only put into abeyance by the war and could all comeback into hfe and force when the war was gone. o!! the 29th of May, 1865, these old State constitutions had either come to be in force or they had not. If they were in force at all, then all their provisions were in force and binding, just as much as NewYorks constitution was; and could only be changed in the mode prescribed by themselves. Is it cometent for the U.S. to order NewYork to call a convention and change her constitution? Is it competent for the U.S. to order it changed in a way in total disregard to the modes of amendment which it prescribes as the only ones by which it can be amended 2 Now what has happened in these rebel States? Take one example as a specimen of all. On the 29th of May 1865, President Johnson is Sllfilljl protlnmnion appointing Holden provisiona got11l01“Uf" NCarolina, and or dered him, under prescribed rules, to call a convention for “ altering or amendin the constitution of NCarolina, ” &. c. at then that constitution of NCarolina prescribes how alone it can be altered. This mode is by bill read 3 times and voted for by 3/5ths of the members of each branch of the Legislature; then this bill st be published for 6 months before the elec 1011of the next Legislature; then the next Legislature, by a 2/3rds vote in both Houses, must a in approve the amendment; and then it must e approved by a majority of the voters of the State; and then it is part of the constitution. The convention ordered by the President is wholly unknown to and in violation of the old constitution; and if it was in force at all on the 29th of May, it could no more be altered in that wa than the constitution of England could. fie or dered a convention, he directed who should vote, who should be eli bleto sit in the convention, and what oatht ey should take; every one ofwhich orders would have been in tin rant disre rd of the constitution and laws of NCarolina, if, on that day, she had any. Precisely the same thing, in principle, has occurred in every rebel State except, perhaps, 3. By presidential proclamations new governments have been professedl called into existence since the war was endyed, and since the old constitutions and laws were revived out of nbeyance, if they did revive. In every one the new constitutions and governments have. been formed in almost tota disre dof the provisions of the constitutions which they profess to amend. Now, it is exactly impossible to comprehend the action of the Executive except upon the assumption that these State constitutious and their governments had not revived so as to control the methods of their own. amendment. No, no, Mr. Chairman, the President himself tells the country, in the notable words of his proclamation, where it is that he deems that he gets this power to order States into existence. His words are, “Whereas the 4th section of the 4th article of the constitution of the U.S. declares that the U.S shall unranty to every State in the U.S. a RFG. I, AndrewJohnson, President and Commander inChief, ” Sim Sir, here is an unmistakable avowal of the ource of his power and of the cause that callesd that power forth. If the old government and constitution of NCarolina had in fact come back to her out of the suspended animation which the rebellion had caused, then she on this 29th day of Mayal ready had a republican constitution and it needed no alterations to make it republican nor to guaranty one to her. Sir, let me not be misunderstood. I am not pointing to these acts of the President as wrong, at to show that the President has dealt with this great question precisely in the view I mam tain, to wit, that these old State governments were so effectually overthrown that they do not come into force at the end of the war so as to regarding and superseding t furnish the basis of republican governments to these States and that it has become the business of the U.S. to guaranty such governments to them. who hold that in these acts of the Executive, in creating new constitution s, he did so in violation and disregard of living constitutions and republican governments already there. I do not attack him. If, indeed, these old State constitutions had, on the YUth of May, 1865, resuined their sway over these States, as the new champions of the Presidentin this House allege, their indeed has the man the champion, in disliese constitution s, become mar per. Well may the patnotic executive head of this nation repeat once more the chronic prayer which, in all ages, weak adulation has extorted from men in power, “Deliver me from my friends.” SUPREME COUBTS POSITION. But I go on. I now show that the 3rd or judicial branch of the Government is, by solemn and unanimoiisjudgments, twice repeated, committed, in principle. to the same exact conclusions. But in presenting these high arguments the judgments of the Supreme Courtlet me make them at once serve the double end of making utterly conclusive and complete the position that a State may cease to have the governing rights of states by reason of rebellion, and ofalso answering whatis urged so much as to the logical and practical consequences of that position. An alile statement of these objections has been laid on our table. Their effect is 1. That it admits thata State may secede. 2. That, as a consequence of this, JeffersonDavis cannot be punished for treason any more than the Governor of Canada could be. 8. That if we admit the rebels “were to be regarded as belligerents, ” then when we take them back we become liable for their debts. 4. That individuals and not the States forfeit their rights by treason. In enforcin these objections my friendfrom NewYork [Mr. RAYMOND] says: “If they wore out of the Union. when did they be comoso! They were once States in the Union. If they went out of the Union it was at somespecific time and by some specific not.” Before the Supreme Court hall be made to answer, as it will, each one of these objections, permit me, Mr. Chairman, to allude to them; and 1st to this question about the “specific act, ” which the Gentfrom NewYork[Mr. Rnxosn] asks. In respectfully answering his let me ask and answer some questions of similar legal aspect. I ask when and by what specific act does “tumult” become “war” in law? Ianswer, in the language of Chief Justice Marshall, when it, in fact, assumes“ warlike array and strength.” What in a civilWar is thespecific act and time which changes, in law, an “ insurrectionary ty” into par a “ belligerent?" I answer, in the an gunge of the Supreme Court, when in fact “the rer course of justice is interrupted by revo t, rebellion, or insurrection, so that the courts of justice cannot be kept open.” When, in law, does a revolt become civilWar? I answer, in the language of Wheaton, when “the insurrection becomes, in fact, so strong as no longer to obey the sovereign, and to be able by war to make head against him.” When, in law and by what specific set, did the entire population of Virgima, including the loyal men, cease to be “friends, ” and become “enemies of the U.S.?” I answer, when, in fact, they became “belligerents.” If these answers by the highest authorities in the world do not still answer what “specific set” deprived SCarolina of every right and power of a State, then I further answer him that it was that specific act which turned her citizens into traitors, took from her the loyal courts, statutes, constitution, tribunals, officers, and Legislature, and which filled their places with treason and kept it there and if the gentleman still desires to know the specific time when this happened, it will answer all the purposes of my argument to reply that it happened They attack the presient about 4 years before the time when he has told us it did. to wit, before she “ surrendered.” The destruction and supersedure of all loyal government and law in SCarolina was a fact, not a law. It was this fearful “ fact” which made her cease to be a State governing, this Union, and not any ordinance of secession. The distinguished gentleman to whom I have alluded states the 4th objection which I have named in these words: “"lho people of a State may, by treason forfeit their rights, but in a legal point ofView they have no powerto afioot the condition of a Statein the Union.” That is, turned out of metaphysics into English, every inhabitant of a State may, by treason, come to have no political rights or powers whatever as individuals except teright to be hung; but the same individuals, put into a bundle and called a bodypolitic or State, have all political rights and powers, and can govern this Unionl N ow, a plain man would have difficulty in being able to see a living, acting, ruling State where there was no constitution, court, or law, and where there were no inhabitants, all these having been him for treason. such a man would be dull enoug to conclude that ifyou hung for treason all the people required to make u the 1 body politic called a State the State wou d at least e in affliction. But, Mr. Chairman, it was unfortunate for this distinction between the political State and its people that it has repeatedly encountered the ordeal of the Supreme Court and has been utterly discarded by it. In 3 Dallas, 98, that court says: “A distinction is taken at bar between a State and the people of a State. It is a distinction I amnot enpable of comprehending. By a State forming a republic, (speaking of it as a moral rsou.) I do not mean the Legislature of the State, toExecutive of the State, or the judieiary, but all the citizens which composethe State and are, if I may so expressmy self. integral parts of it, all together forming a body politic.” The same repudiation of a distinction between a bodypolitic and its individual members is in the “ Prize Cases” hereafter cited. 2 years before the objections I have quoted were so ably uttered, they had been pressed, with learning, zeal, and ability equal to his, upon the consideration of the Supreme Court in these “Prize Cases, ” (2 Blue, 635) and had been discarded unanimously by that court, 9 judges sitting, including laney. I as. it was unanimous because all the court agree that after the passage of the act of Congress of 13th July, 1861, recognizin the existence of the war, every inhabitant ofterebel States became “enemies” of the U.S and “belligerents.” I affirm that the reasoning and judgment of this case settle and establish each one of the following propositions: 1. From the 7th paragraph of the Sylla bus (age 686) I quote and affirm that the late “civi war between the U.S and the socalled confederate States, ” had “such character and magnitude as to give the U.S. the same rights and powers which they might exercise in the case of a foreign war.” 2. From the 9th paragraph of the same Syllabus I quote and aiiirm that “ all persons residing within the territory occupied by the hostile (rebel) party in this contest were liable to be treated as enemies though not foreigners. 3. I affirm again, quoting from the opinion of the court (page 673] that “ it is a proposition never doubted that the belligerent party who claims to he sovereign may exercise BOTH belligerent and sovereign rights.” 4. I affirm that precisely the same objection was urged in this use as those I have quoted; and were stated by the court in these words, “that insurrection is the act of individuals and not of the government or sovereignty, ” and “that the individuals engaged are the subjects of law, ” and “that secession ordinances are nullities and ineffectual to release any citizen from his allegiance.” I To these objections the Supreme Court replies: “This argument rests on the assumption of 2 propositions, each of which is without foundation upon the establishedlaw of nations. It assumesthat whare aing civilWar onsts the party belligerent claim to besovereigncannot, for someunknown reason. exercisethe rights of belligerents, though the revolutionary party may. ”, Again the court replies to those objections in the following words, the court italicising the words: “In organizing this rebellion they have acted no Slum claiming to be sovereign over all persons and property.” In December 1866, the ten judges (2Wallace, 404) unanimous y decided the something; that all the inhabitants, guilty and innocent, became belligereuts and “enemies” of these U.S. The results of these 2 decisions are that these rebel States, 1. Acted as States in organizing the rebellion. 2. That all their citizens, innocent and guilty were thereby made “ anemia of the U.S. ” 8. That though theybecame “enemies” that did not make them “foreign” States so as that when we take them back we must ay their debts. 4. That, as the court decides that the U.S. may exercise over these people both “ bel ligcrent” and “sovereign” rights, therefore we may, as sovereign, try DaVis for treason, although we did treat and hold these States as an “enemys” country. 5. As these States became “ enemies” territory, and all persons residing within it became “enemies of the U.S., ” they cannot at the same time have been a people having any political rights to govern in this nion, unless indeed this Union can be governed by a bod of people, every one of whom are held by its law to be the “ public enemies of the U.S. ”