Year: 1868

( the clause OF the Constitution to which L have
! referred. He appoints a Governor for \ orth
Carolina and for these other States, the of
| fee being civil in its character, but military
! in It's effects This Governor has all the
| power of one of the district commanders,
and, in fact, far greater power than was CON
ferred upon Gen. Pope or Gen. Sheridan or
any general in command of district; for it
Is further provided:


''That the military commander of the depart
ment, and all the officers and persons in the mill
tary and naval SCI vice, aid and assist the said
provisional Governor In carrying into effect this
proclamation


We are then agreed upon the second prop
OSltion that the power Of the United States
toreconstruct and guarantee epubiican forms
OF government, at once applied when these
States were found in the condition in which
they were at the end of the war. Then, sir,
being agreed upon these two propositions,
we are brought to the question as TO the
proper form of exercising this power and by
whom 1t shall be exercised The Constitu
ton says that the United States shall guar
antee to every State in this Union republi-
can form of government" By the phrase
United States" here is meant the Govern
ment of the United States. The United
States can only act through the Government
and the clause would mean precisely the
same thing if it read ''the Government of
the United States shall guarantee to every
State in this Union a republican form Of
government.


Then, as the Governmental the United
States is to execute this guarantee, the ques-
ton arises, what constitutes the Government
OF the United States? The President does
not constitute the Government the Con
greSs does not constitute the Government
| the Judiciary does not constitute the Gov
ernment; but all three together constitute
the Government; and as this guaranty Is to
be executed by the Government of the Uui-
ted States, it follows necessarily that it must
be a legislative act. The President could
not assume to execute the guarantee without
| assuming that he was the United States
within the meaning of that provision, with
out assuming that he was the Government
of the United States. Congre-5 could not
OF itself assume to execute the guarantee
without assuming that it was the Govern
ment of the United States; nor could the
judiciary without like assumption The
act must be the act OF the Government, and
therefore 1t must be legislative act, law
passed by Congress, submitted 10 the Presi-
dent for his approval, and perhaps, in Z
proper case, subject to be reviewed b. the
judiciary.


Mr.. President, that this is necessarily the
case from the simple reading Of tho Consti-
tuition seems to me cannot be for moment
denied. The President, in assuming to ex-
ecute this guarantee himself, is assuming to
be the Government of the United States,
which he clearly is not, but only one of its
coordinate branches; and, therefore. as this
guarantee must be legislative act, it fol-
lows that the attempt on the part OF the
President to execute the guarantee was with
out authority, and that the guarantee can
only be executed in the form of a law, first
to be passed by Congress and then to be sub
mitted to the President for mis- approval, and
if he does not approve it then to De 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 ques-
ton. | send TO the Secretary an2 ask him
to read part of the decision of the Supreme
Court Of the Urited States in the case Of
Luther VS., Borden, as reported in Howard.


The Secretary read as follows:


'MoreoVer, the Constitution of the United States
far it has provided for an emergency of this
kind. and authorized the General Governm mt to
interfere in the domestic concerns of State. has
treated the subject as political in its nature and
placed the power in the hands of that department


The fourth section of the fourth article of the
Constitution of the United States provides that
the United States shall guarantee to every State in
the Union republican form of government. and
shall protect each of them against invasions; and
upon the application of the Legislature Of the
Executive when the Legislature cannot be con-
vened) against domestic yio ence


Under this article of the Constitution it rests
with Congress to decide what government is the
established one in a State, For as the United
States guarantees TO each State republican gov
ernment Congress myst necessarily decide what
government is established in the State before it
can determine whether it is republican or not
And when the Senators and Representatives of
State are admitted into the councils of the Union
the authority of the government under which
they appointed, as well as its republican char
acter. is recognized by the proper constitutional
authority. And its decision is binding upon every
other departme ent of the Government, and could
not be questioned in judicial tribunal Itistrue
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 Su-
preme Court of the United States, delivered
many years ago, the right to execute the
guarantee provided for in this clause OF the
Constitution is placed in Congress and no
where else, and therefore the necessary read
ing of the Constitution is confirmed by the
highest judicial authority which we have


Mr.. johnson. Do you read from the O.
pinion delivered by the Chief Justice?


Mr.. Morton Yes, sir; the opinion of
Chief Justice Taney He decides that this
power is not judicial; that it is one of the
high powers conferred upon Congress; that
il is not subject to be reviewed by the Su-
preme Court, because it Is political in it's ma
tnre. It is a distinct enunciation of the fact
that this guarantee is nc. net IL 10 oe executed by
the Prnci9ent or by the Supreme Court, but