The national era. [volume] (Washington [D.C.]) 1847-1860, 1856-04-10
THE POWER 0F.THE CHIEF EXECUTIVE
STARTLING ASSUMPTIONS.
EXTRACTS FROM THE

STARTLING ASSUMPTIONS.
EXTRACTS FROM THE
SPEECH OF HON. i. WASHBURN, JR.,
OF MAINE,
On the Resolution reported by the Committee Of Elections
in the Contested Election Case from the Territory OF
Kansas. Delivered in the House of Representatives,
March Ia, 1856
The gentleman from Maryland, Mr.. DAVIS
in his very able and ingenious speech, has shiv-
cred and scattered most effectually the arguments
and defences of those who preceded him in OPP
position to the resolution reported by the COM
mittee. He acknowledged frankly that they had
not met the real question in the case. When IN
State there is controversy as to the proper and
regular Government, and there are two organiza-
tons claiming to be regular, there must of neces
sity be power somewhere, outside of those or
CARNATIONS, to determine which is rightful and
legal. This he concedes and submit that the
power exists whenever a real and bona tide dispute
arises as to the proper existence of a Government
or Legislature, whether there be concurrent
and opposing Government or Legislature, or not.
Whenever the question is raised upon proper oc-
casion, it must be decided
But, while the gentleman from Maryland has
been so successful i'm his assaults upon the posi-
tions of others, it appears to me that he has
planted himself upon grounds even more inds-
feasible than they have occupied. The power to
decide these questions resides somewhere. The
President Of the United States he says, under the
act of 1895, has authority to call out the militia
to suppress instructions, and in doing this must
necessarily determine which is the Government or
party to be sustained, and which to be put down
and this decision does not cease to operate with
the occasion which called it out, but reaches
beyond it, and extends to all cases and over all
tribunals. The courts, he adds, follow the polit-
ical power; and this power so far as questions of
this kind are concerned, is in the President
Now it is undoubtedly true that the rule of the
Supreme Court is to follow the political power in
its decisions upon political questions; the judicial
power recognises the Government which the po-
litical power recognises. Where, from the nature
of the case, as when there is an instruction in
State, the President must decide whether Gov
eminent is to be recognised, that decision is the
political power and the courts will follow it in all
things to which it refers and upon which it bears;
and citizen indicted for an assault committed
by order of the Government which is recognised
by the President, will be shielded by the Presi-
dents recognition of that Government. Where,
from the nature of the case, the Senate is to de-
eide, as when question arises upon the elections
and qualifications of its members, its decision,
under the Constitution, is the political power
which the court will follow in all things touching
and growing out of such decision; and SO Of the
House of Representatives when it decides that
one is entitled to seat a member, the court
will protect him in all the rights and privileges
of a member.
This question has been settled so distinctly,
and upon reasons so cogent, by the Supreme
Court, in an opinion pronounced by Chief JUS
tice fancy, in the of Luther Borden ct al,
case growing out of the Dorr disturbances in
Rhode Island, that | am unable to see how there
can be room for any doubt upon the subject.
Chief Justice fancy says:
"Under this he 4h) article of the Constitution rests
with Congress decide what Government is the estab-
ished in a State for the United States guaranty
to each State republican Government, Congress must
necessarily decide what established
State, before determine whether il republican
not And when the Senators and Representatives of a
State are admitted the councils of the Union
thory ofthe under which they appointed
well as Its republican character is recognised by the
constitutional authority And il. decision is bind
ing every other department of the Government and
could not he questioned in judicial tribunal 1t is
bring the matter this issue and Senators Rep
elected under the the
ernment OF which MT Dor was the head Congress was
called upon decide the controversy yet the right
decide is placed there, and not in the courts"
Now, submit, this covers the whole ground,
and if decision of our highest court is to be
ceived as authority, settles the question against
the gentleman from Maryland.
The gentleman from Maryland, disagreeing
with the gentleman from Georgia, maintains that
in deciding upon the election of members, the
mouse dctS rs political DOuy, anu not as court
If then, are acting in political legislative
capacity, and the decision to which we may come
will be that by which the courts Of the land are
bound, and the power to make such decision
involves as the Rhode Island case states, the
power to look into State Governments to ascertain
whether they regular and legal, then the ques-
ton is closed and the proprety of sending for per-
sons and papers, even upon the grounds of the
minority, is indicated and if, on the other hand
h. = -.~l~x
sitting here as a court, and can inquire into the
proceedings of State or Territorial Legislatures
only where a court can, we are equally sustained
by the authority to which have referred. Upon
this point the court says:
"he point them raised here has already been decided
by the courts of lode Island The relates Alto
gether Constitution and laws of that Stale and The
well settled rule in this that the United
States adopt and follow the decisions of the in
OF a State.
upon what ground could circuit court of the United
States which tried this case have departed from This re
and dsregarded and overrued the decisions of the court
of Rhode Island Undoubtedly the the United
States certain powers under the Constructor and
laws of the United States which do not belong To- State
courts But the power of determining that State Gov
eminent has been lawfully established, which the
of the State disown and repudiae is not one of them
Upon such question: the the United States are
must therefore regard the charter Cove the law
ul and established Government during the time of this
contest"
So that it appears, by decision of the highest
judicial tribunal in the land, that whether the
House acts in judging of the elections returns and
qualifications of its members, in political or Judi
cial capacity, it has the power and, | may add,
it is its duty, when the inquiry becomes important
to ascertain and decide as to the regularity and
legal existence OF State-and of course of Ter
Iritorial-Governments and Legislatures And
| such inquiry, maintain, does become important
when a material question in issue is whether
-
State or Territory prescribing the way and man
ner of holding elections, as required by the Or
| ganic law thereof. And this will depend upon
another and previous question whether there
| was in existence a legislative body competent to
pass such laws.
Why, sir, the power to decide upon the title of
men, and bodies of men, as Legislatures, to the
offices and functions which they claim, is recog-
missed in thousand cases in the books, where
| upon quo Warranto, such titles have been ex-
| amined and passed upon.
There is a question of this kind being heard
| to-day before the Supreme Court of the State of
Wisconsin. Mr.. Barstow claims to have been
| chosen Governor of that State at the late cleo
| ton, and has been SO declared by the board of
State canvassers. Mr.. Bashford,- the opposing
| candidate, impeaches the decision of the cam
vassers, and alleges that the returns upon which
it was made were forgeries, procured falsely
and fraudulently and that be- in fact, had a
majority of the legal votes, and was therefore
duly elected. The Supreme Court, upon argu-
ment, has taken jurisdiction of the question, and
decided that it has power to 60 behind the ac-
ton of the canvassers, and declare which of the
| claimants was duly elected.
The result is, that where the political power OF
the United States has recognised State Govern
ment, the Supreme Court will adopt that recog-
milton, so far as it legitimately extends; and
where there has been no decision by the political
power, or in cases outside of the scope of a de-