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

We are then agreed ugon the second
proposition, that the power of the
/ United States to reconstruct and guar
auty 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 prOpOsis
tions, we are brought to the Question
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 a republican form
/ ofgoyernment-" By the phrase United
/ Statesf here is meant the Government {
of the United States. The United
/ States can only act through the Gov
EernmeDt, and the clause would mean
/ precisely the same thing, if it read "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-
4 tutes the Government of the United
/ States2 The President 5dees not con-
/ stitute the Government; the Congress
I does not constitute the Government !;
i the Judiciary does not eonstitute the
| Government; but all three together
/ constitute the Government and as this
Il guarantee is to be executed by the Gov
Il ernment of the United States 1t follows
q necessarily L4a3G II must D9 z GsiSEAb4N6
/ act, The President could not assume
| to execute the guarantee without as
/ suming that he was the United States
I within the meaning of that provision,
1 without assuming that he was the Gov
/ ernment of the United States. Con-
/ gress could not of itself assume to exc
/ cute the guarantee without assuming
that it was the Government Of the
4 United States; nor could the Judiciary
without a like assumption. The act
I must be the act Of the Government,
/ AMI therefore il must be a legislative
act q law passed BY Congress, submit
/ ted to the President for his approval,
and perhaps, in proper case, subject
to be reviewed by the judiciary.
WHAT IS THE GOVERNMENT
Mr.. President, that this is necessarily
Z the case, from the simple reading Of
1 the Constitution, seems to me cannot
be for moment denied. The Presi-
/ dent, in assuming to execute this guar
antee himself, is assuming to be the
I Government Of the United States,
which he clearly is not, but only one of
4 its coordinate branches; and, there
tore, as this guarantee must be a legis-
latiVe act, it follows that the attempt on
Il the part of the President to execute the
4 guarantee was without authority, and
/ that the guarantee can only be exeeut-
I ed in the form of a law, first to be
]
submitted to the President for his ap-
provaI, and if he does not approve il,
Ihen to be passed over his head by a
majority of tWO-thirds IN each House.
| That law, then, becomes the execution
of the guarantee, and is the act of the
/ Government of the United States.
Mr.. President, this is not an open
question. I 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 z Howard.
The Secretary read as follows:
Moreover, the Constitution of the
United States, as TAR 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
SUate, has treated the subject as politi-
cal in its nature, and placed the power
in the hands of that department.
s'[rhe 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 (Wheu the Legislature cannot
be convened) against domestic violence.
"Under this article Of tho Constitu
tion it rests with Congress to decide
W4db AAHEA 4AA4AEAAl rs bllG EaRpsL one
in a State. For, as the United States
euarantees to each state a republican gov
ernuent, Congress must necessarily decide
what government is established in the State
before 1t can determine whether # 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 weu as its republican -charac-
ter, is recognized by the proper cOnstitu-
tionaI authority. And its decision is bind
ing upon every other department Of the
Government, and. could not be questioned
in ajudicial tribunal. It 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 of the
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-
citation 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 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, L will call the attention of my
friend from Wisconsin to some other au-
thOriby. As he has been pleased to re-
fer to former Speach of mine to show
that 1 am not quite consistent, I will
refer to vote given by him in 1864, on
a very important provision. On the Ist
of July, 1864, the Senate having under
cOnsideras lon, as in Committee of the
Whole, "a bill to guarantee to certain
States, whose governments have been
usurped or oVerthrOWn, a republican
form of government" !" Mr.. Brown OF
Missouri, offered an amendment to
strike out all of the bill after the enact
ling clause and to insert a substitute,
The Secetary read as follows:
"That when the Inhabitants of any
State have been declared in a state of
insuTrection against the United States
by proclamation of the President, by
force and virtue of the act entitled fAn
act further to provide for the collection
of duties On imports, and for other pur-
poses, approved July 13, 1867, they shall
be, and are hereby declared TO be, inca
ble ofcasting any vote for Electors of
President or Vice President of the uni
ted States, or of eleeting Senators or
Representatives in Congress, until said
linsurrection in said State is suppressed
or abandoned, and said inhabitants
| have returned to their obedience to the
Government Of the United States and
until such return to obedience, shall be
declared by proclamation Of the Prest-
dent, issued by virtue of an act Of Con-
gress hereafter to be passed, authoriz-
ing the same"
Mr. NORTON. The honorable Sena-
/ tor from wisconsin voted for that in
/ Committee of the Whole and on its final