Year: 1868

ment. the provision goes on, and shal
plication of the legislature or Of the exec
utive, (when the legislature cannot b
convened,) against domestic violence.
The section speaks of an organized stat
government with an executive and q LEG
islative department. and imposes upon tn
government of the United States duties t
be discharged when called upon b. tn
executive or the legislative department. O
the state; so that the very clause itsel
contemplates an existing state government
republican in form, aud simply impose
upon the government of the United State
the duty to protect. maintain and defent
that republican form of government
This word guarantee e" does not confe
an original power, either in its legal sens
or common meaning. 1t means to main
tain or assure that Which is already in ex
istence. And this was the view taken b,
the fathers who had much to do with th
formation Of the constitution. Madison
Hamilton, and Story have all said tha
this Clause contemplates preexisting state
government republican in form, and tina
it simply confers upon the general govern
ment the power. and imposes the duty o
protecting that republican form of govern
ment to the state.


In the nature of the provision itself, il
the scope, force, and meaning of the Ian
guage used, and according to contempora
ueous construction, it confers upon the
general government no power to make ;
state or to control the people in that work
1t is the high prerogative aud business o.
the people to make state governments. NJ
state governments can COT into existence
at the will and nod of the congress Of the
United States. 1t Is not within your pow
er. The constitution has not said you
might do it; and the whole practice of oul
government TO recognize state govern
ments when they have been made by the
people.


Mr. president, frequent reference has
been made to the case of Duther VS.. Bor-
den, III Howard, an important case de.
cided by the supreme court of the Uni5ed
States, and my colleague felt himself JUST
fed, instead of stating what was the force
and meaning of the decision, in reading
me dictum of one of the judges Instead
that opinion, as read by my colleague
giving the decision of the supreme court
that court decided in that case very dil.
ferent proposition. Instead Of deciding
that congress had the right to recognize d
state government the court decided that
the recognition of state government by
the executive was controlling upon the ju
dietary. That was the celebrated case oi
Rhode Island. The question before the
court Was this had an officer under the
charter of the government Of Rhode Island
the power to execute = mandate issued pur
suant to martial law in that state ? and i
raised the question whether the charter
government or what was known as tht
Dorr government was the legitimate anC
valid government of Rhode Island The
court in deciding that question did no
hold that the charter government was the
government of Rhode Island because con
gress had recognized it, for congress hac
not interposed. The court expressly say
that the question did not come before con
yress, for the reason that the Dorr gov
ernment never sent representatives to thu
house and senators TO this body, ant
therefore congress was not called upon t,
act under any power it possessed.


But, sir, the charter governments o
Rhode Island, through its executive, die
call upon the president Of the United
States to aid in putting down what was re
garded as an insurrection in the state by
interposiug military power against tho
Dorr government and the president o.
the United States recognized the charter
government of Rhode Island IN responding
to that call. Although troops were no
called out, yet the president did respond
to that call, and recognized by that re
sponse the charter government Of Rhode
Island; and the supreme court Of the
United States say that the action Of the
executive, in connection with the decision
of the highest court of Rhode Island, wa.
conclusive upon the Judicial department
of the United States; yes, sir, conclusive
upon the question whether the charter gov
erEment was the legitimate and valid gov
ernment Of Rhode Island Then the case
of Luther VS.. Borden establishes this prop
osition that the executive of the United
States having recognized a state govern
ment, the state having once been in the
union, that recognition is binding upor
the judicirry.


In 4 Wallace, ex rarte Miligan, the
court reviews the case of Luther VS. Bor
den. and holds the following language.


''This court held that state may use
its military power to put down an armed
lnsurrection too strong to be con troled by
the civil authority; and if the legislature
of Rhode Island thought the perils so great
as to require the use of its military forces
and the declaration of martial law, there
was no ground on which this court could
question its authority aud as Borden act
ed under military orders OF the charter
government, which had been recognized
by the political power Of the country, and
was upheld by the state judiciary, he wa.
justified in breaking into aud entering
Luther's house. This is the extent of the
decision"


This i3 the extent of the decision-that
the ruling of the judiciary of Rhode Isl
and, In connection with the recognition oil
that state government by the executive ot
the United States, was conclusive upon the
judiciary Of the United States on the ques
ton as to whether it was state govern
ment. asfH .a


Now, Mr.. president, l claim that Mr.
n l.