Delaware gazette. [volume] (Delaware, Ohio) 1855-1886, 1868-02-07

aid and assist the said provisional Gov
/ ernor in carrying into effect this prOcla-
/ nation"
We are then agreed ugon the second
/ proposition, that the power of the
/ United states to recOnstruct and guar
/ anty republican forms of government
| at once applied VIXEN these States were
/ found in the condition in which they
| were at the end of the war. Then, sir,
] being agreed upon these two propOsie
/ tions, we are brought to the question
1 as to the proper form of exercising this
/ power ard by whom it shall be exercis-
ed. The Constitution says that "the
/ United States shall guaranty to every
I State in this Union republican form
/ Government" By the phrase UNITED
States" here is meant the Government .
/ of the United States. The United
States can only act through the Gov
1 eminent, and the clause would mean
I precisely the same thing, if it read s'the
/ Government Of the United States shall
| guaranty to every State in this Union
! a republican form Of government"
Then, as the Government of the
/ United States is to execute this guaran-
] tee, the question arises, what consti-
tutes the Government Of the United
States2 The President does not con-
| stitute the Government; the Congress
i
the Judiciary does not constitute the
Government: but all three together
/ constitute the Government; and as this
/ guarantee is to be executed by the Gov
/ ernment of the United States 1t follows
/ necessarilv lv that iG must be q leg1sI IatiVe
.ot The Presidnez6 cOIlld not assume
to exeeuts the y1arantes-sEithout as
sl1zafng that ne was the United Etafaa
I within the meaning of that provision,
without assuming that he was the Gov
: Hear-r ont f9FE a IT ON
gress could not of itself assume to exc
cute the guarantee without assuming
that it was the Government Of the
United States; nor could the Judiciary
without a like assumption. The act
must be the act of the Government,
AMI therefore it must be a legislative
act, q law passed by Congress, submit
ted to the President for his approval,
and perhaps, in a proper case, subject
to be raEiazzad layz tle Judiciary
WHAT Is THE GovERN1rENT?
Mr.. President, that this is necessarily
the case, from the simple reading of
the Constitution, seems to me cannot
be for moment denied. The Presi-
dent, in assuming to execute this guar
autee himself, is assuming to be the
Government Of the United States,
which he clearly is not, but only one Of
its coordinate branches; and, there
tore, as this guarantee must be a legis-
latiye act, it follows that the attempt on
the part of the President to execute the
guarantee was without authority, and
that the guarantee can only be execut-
ed in the form of a law, first 70 be
passed by Congress, and then to be
submitted to the President for his ap-
prOval, and if he does not approve if,
then to be passed over his head by a
majority of twO-thirds in each House.
That law, then, becomes the execution.
Z of fkIcac ON "a T= n
GOvernm ment of the United States.
Mr.. President, this is not an open
question. send to the Secretary and
ask him to read a part of the decision
of the Supreme Court of the United
States in the case of Luther vs.. Borden,
as reported in Howard.
The Secretary read as follows:
Moreover, the Constitution of the
United States, as far as it has provided
for an emergency of this kind, and au-
thorized the General Government to in
terfere in the domestic concerns of a
STate, has treated the subject as pOliti-
cal in its nature, and placed the power
in the hands of that department.
tS'Ehe fourth section of the fourth ar
ticle of the Constitution of the United
State provides that the United States
shall guarantee to every State in the
Union a republican form of govern
ment, and shall protect each of them
againt invasions and upon the appli-
cation of the Legislature or of the Ex-
ecutive when the Legislature cannot
be cOnvened) against domestic violence.
Under this article of the Constitu-
ton it rests with Congress to decide
what government is the established one
ina State. For, as the United States
guarantees to each Staten republican gov
eminent, Congress must necessarily decide
what government is established in the State
before It can determine whether It is repub-
Iican or not. And when the Senators and
Representatives of a State are admitted In
to the councils Of the Union the authority
OF the government under which they are
appointed, as well as its republican echarac-
ter, is recognized by the proper cOnstitu-
tional authority. And its decision is bind
ing upon every other department Of the
Government, and could not be questioned
in a judicial tribunal. 1t is true that the
contest in this case did not last long enough
to bring the matter to this issue; and as no
Senators or Representatives were elected
under the authority Of the Government of
which Mr.. Dorr was the head, Congress was
not called upon to decide the controversy.
Yet the right to decide is placed there, and
not in the courts"
Mr.. MORTON. In this opinion ofthe
Supreme Court of the United States, de-
livered many years ago, the right tOex-
ecute the guarantee provided for in this
! clause of the Constitution is placed in
| Congress and nowhere else, and there
fore the necessary reading of the Con-
stitution is confirmed by the highest
judicial authority which we have.
Mr.. JOHNSON. Do you read from
the opinion delivered by the Chief JUS
tice
Mr.. MORTON. Yes, sir the opinion
/ delivered by Chief Justice Taney. He
decides that this power is not judicial !;
[ that it is not subject to be reviewed by
the Supreme Court, because it is politi-
cal in its nature. 1t is a distinct enun-
ciation of the doctrine that this guaran-
tee is not to be executed by the Presi-
dent or by the Supreme Court, but by
the Congress of the United States, in
the form of a law to be passed by that
body and to be submitted to the Presi-
dent for his approval should he disap-
prove it, it may become a law by being
/ passed by a tWO-thirds majority over
his head
Now, [ will call the attention Of my
| friend from Wisconsin to some other au-
! thority. AS he has been pleased to re-
/ fer to a former speach of mine to show
/ that I am not quite consistent, I will
refer to a vote given by him in 1864, on
1 a very important provision. On the 1st
/ of july, 1864, the Senate having under
| consideration, as in Committee of the
| Whole, ga bill to guarantee to certain
/ States, whose governments have been
1 usurped or overthrown, a republican
/ form of government" !" Mr. Brown, OF
! Missouri, offered an amendment to
4 strike out all of the bill after the enact
I y=ofause and TO insert substitute,
I which I will ask the Secretary to read.
/ The Secetary read as follows:
"That when the inhabitants of any
/ State have been declared in a state Of
/ insurrection against the United States
/ by proclamation of the President, by
| force and virtue of this act entitled IAN
1 act further to provide for the collection
I of duties On imports, and for other pur-
! poses,' approved July I3, 1867, they shall
/ be. and are hereby declared to be, inca
bic Ofcasting any vote for Electors of
/ President or Vice President of the uni
/ ted States, or Of electing Senators or
/ Representative in Congress, until said
instruction in said State is suppressed
or abandoned, and said inhabitants
l have returned to their obedience to the
/ Government Of the United States and
1 until such return to obedience, shall be
! declared by proclamation Of the Presi-