The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1868-02-21

70 bSrevieved by the judiciary.
SIR. President, that this 10 necessarily The
case from the simple reading Of the Coustitu'
ton seems TO me cannot be for moment de-
MED. The President, In assuming to execute
this guaranty himself, 10 assuming to be the
Government Of the United States, which he
clearly 10 not. bat only one Of tts coordinate
branches; and, therefore. ~ this guaranty
must Be legislative act, Il follows that the ut.
tempt on the part Of the President to execute
the guaranty Was without authority, and thai
the guaranty can only be executed ID the form
offs Law, 6rst to be passed by Congress and
then to be submitted to the President for his
approval; and II he does not approve u, then
to bs passed over his head by majority oi
two-thirds 10 each House. That law, then,
becomes the execution Of the guaranty and Is
the act Of the Government OF the United States
Mr.. President, this 10 not On open question.
send TO the Secretary and ask him to read q
part OF the decision OF the Supreme Court oi
The United States In the case OF Luther 70.
Borden, - reported Ia Howard.
The Secretary read - follows:
Moreover, the Consultation OF the United states,
~ far ne II has provided for an emergency ottn
Kind, /, and authorised the Isusral aesernnsas 70
10 the domestic SSncsrn' o.. 2, ns,nrs and
placed the power In the hands nf that department.
The fourth seceion Of the fourth article OF the
Constitution oftho United States provides a. that
the United states shall guarantee 70 every STATE
in the Union republican form cf government, and
shall protest each OF them against invaslons, ana
upon the application OF the Legislature or OF the
Executive twhen the Legislature cannot DO CON
| yened) against domestic violence.
/ Under this article OF the Constitution u rests
with Congress TO decide what government 70 the
established one! In State. For, as the Onited
ernment, Congress must necessarily decide what
government Is established In the state before u
can determine whether II 10 republican or not
And when the Senators and ,;an 2,
the authority OF the government under which tney
are appointed as we'll a. Its republican character
10 recognized by the proper constitutional author
department Of tho government, and could not be
questioned In judicial tribunal. II IL true that
the contest In this case did not last long enough
to bring the matter to this Issue! ana :; no sena'
thority OF the government or which Dir. Dorr was
the head Congress Was not called upon to decide
the controversy. Yet the right TO decide 10 placed
there, and not In the courts.
Mr.. MdRroN In the opinion Of the Supreme
Court Of the United States, delivered many
years ago, the right to execute the guaranty
provided for In this clause 0f the Constitution,
Is placed Ia Congress and nowhere else, and
therefore the necessary reading OF the Consti-
tuition is confirmed by the highest judicial au.
thority which We have.
Mr.. JOHNSON. Do you read from the opinion
delivered by the Chief Justicei
Mr.. MoRroS. Yes, sir; the opinion deliver.
ed by Chief Justice Taney. He decides that
this power Is not judicial; that 1t Is one OF the
high powers conferred upon Congress: that 1t
is not subject to be rcviewd by the Supreme
Court. because II IL political In its nature. Il
Is distinct enunciation Of the doctrine that
| this guaranty Is not to be executed by the
President or by the Supreme Court. but BY the
1 Congress of the United States, In the form OF 0
law TO be submitted to the President for his ap-
proval and should he disapprove II, It may
become law by beng passed by two-thirds
majority over his head. =,
Now. | will call the attention OF my friend
from Wisconsin 10 some other authority. As he
has been pleased to refer to former speech OF
mine to show that am not quite consistent, |
will refer TO vote given by him ip 1854, on
very important provision. On the lst OF July,
| 1854, the Senate having under consideration. as
| In Committee of the Whole, "a bill to guaran-
tee TO certain States whose governments have
been usurped or ovprthrown u republican form
of government" Mr.. Brown, Of Missouri,
offered an amendment 10 strike out all of the
bill after the enactlng clause. and to insert q
substitute. which I will ask the Secretary to
read.
The Secretary read rs follows:
That when the Inhabitants OF any State have becn de-
carei In safe of nsucc;ion against the United States
by proclamation of the President, ny orce and virtue OF
the ret entlel IAN act further to provide m the collection
Of duties Imports and for other purposes approved
July H. 1861 they shall be, and hereby declared o
lie incapable of casting any vote for electors Of President
or Vice President Of the Untd Saes of eectiog Sena-
tors NJ Representatives In Congress until sad nsurectio
in sa State Is suppressed abandoned and said inhab
tants have returned their obedience 10 the Government
~ the United States aud until such return 70 ebedenc:
shall Ire declared by proclamation of the President ssuei
Ia IL lnsrt IA ha
thorring The same.
| Mr.. MORTON. The honorable Senator from
WISCONSIN voted for that In Committee Of the
Whole and on its fnal passage. | call atten.
| lion to the conclusion Of the amendment, which
declares that they shall be-
Ineapabls Of casting any vote for electors OF
Presdent or Vice President Of the United States or
Of feecting Senators or Representatives Conyrnss
until said insurrecton in SAID state 10 suppressed
or abandoned, and said inhabitants have returned
10 their obedience 10 the Government of the Unit
| cd States. and until such return and nhetience
issued by virtue Of an act OF Congress hereafter to
be passed, authorizing the ssms.
I therefore. Mr.. President. take the PROPOSE.
tion as conclusively established, both By reason
and authority, that this clause Of the Constitu-
ton can be executed only by Congress and
taking that as established, I now proceed to
consider what are the powersof Congress In
the execution uf the guaranty, how It shalt be
executed, AMI what means may be employed
for that purpose. yhe Constitution does not
define the means. II does not cay how the
guaranty shall be executed. All that Is left to
the determination Of Congress. As to the par.
ticulsr character of the means that must be
employed, that. take It, will depend upon the
peculiar circumstances Of each case and the
extent of the Do yer will depend upon the 9th.
er question ~ to what may be required for the
purpose of maintaining ar guaranteeing . Low.
al republican form ~ government In each
State. I use the word "loyal," although It isl
not used in the Constitution, because 10y tyis
an inhering qualification, not only in ress rdto
persons who are tO Oil public offices. but In re-
gard 10 State governments, and We have no
right to recognize State government that Is
not loyal TO the Government Of the United
States. Now, sir, ~ 90 the use of means that
are not prescribed In the Constitution, I call
the attention Of the Senate to the eighteenth
clause Ut se,ion eight of the hrst article Of the
Constitution Of the United States, which dc.
clares that:
The Congress shall have power to make all laws
which shall be necessary and proper tor carrying
into execution the foregoing power, and all other
powers vested by this Constitution In the uovern-I
ment of the United states or any department or
otIlcer thereof.
Here 10 declaration Of what would other
wise be general principle anyhow; hat Con-
grcss shall have the power to pass all laws nec-
e.ssry to carry into execution ail powers that
are vested 10 the government under the Consti-
tuition. A. Congress has the power to guar
sntee or maintain loysl republican govern.
meut In each State, II has the right To use what
ever means may be necessary for that purpose.
As I beE,re remarked, the chara,ter 0f the
means will depend upon the character Of the
case In one case II may be the use OF an ar
my; In another case perhaps it may be simply
presenting question to the courts, and having
Il tested In that w,y in another case Il may 60
to the very foundation Of the government II
self And now propound this proposition
that Il Congress alter delibsraiion, after long
and blooiy experience, shall come TO the con-
cluson that loyal republican State governments
cannot be erected and maintained in the rebel
States upon the basis of the white population,
Il has right to rsise up and make voters OF .
class Of men Who had no right 70 vote under
the State laws. This 10 simply the use OF the
| neoessarv means In the execut tion of the guar