Year: 1868

tlnct recognition of the applicability


OF this clause of the Constitution, and


that he based his system of reconstruc


ton upon it. 1t is true he recites in


this proclamation that he Is the Com


mander-in- Chief of the Army of the


United States; but, at the same time


he puts his plan of reconstruction, moi


upon the exercise of the military pow,


er which is called to its aid, out on the


execution of the guarantee provided


by the clause of the Constitution tc


which have referred. He appoints q
Governor for North Carolina and fol
these other States, the Office being civil


IN its character, but military in its
effects. This Governor has all the DOW
er of one of the District Commanders,
and, in fact, far greater power than was
conferred upon Gen. Pope or Gen. Sheri-
dan, or any General in command of q


District; for it is further provided:


THAT the military commander of the
department, and all officers and per.
sons in the military and naval service,
aid and assist the said provisional Gov
ernor in carrying into effect this proc,
lamation."


We are then agreed upon the second
proposition, that the power of the Uni


ted States to reconstruct and guaranty
republican forms of government al
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 PROPOSE.


tions, we are brought to the questions
as to the proper form of exercising this


power and by whom it shall be exer.


cised- The Constitution says that "the
| United States shall guaranty to every
State in this Union a republican form
of government" By the phrase "Uni


ted 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 il
read 'the Government of the United
States shall guaranty to every State in
this Union republican form of goY.
ernment."


Then, as the Government of the
/ United States is to execute this guaran,
I tee. the question arises, what consti.
tu tes the Government of the United
States? The President does not con.
stitute the Government the Congress
does not constitute the Government
the Judiciary does not constitute. the
Government; but all three together
constitute the Government and SIS
this guarantee is to be executed by the
Government of the United States IL
follows necessarily that it must be q
legislative act. The President could
not assume to execute the guarantee
without assuming that he was the Unit
ed States within the meaning of that
provision, without assuming that he
was the Government of the United
States. Congress could not of itself
assume to execute the guarantee with
out assuming that it was the Gov
ernment of the United States; nor
could the judiciary without a like as
sumption. The act must be the act of
the Government, and therefore it must
be legislative act, law passed by
Congress, submitted to the President
for his approval, and perhaps, in a
proper case, subject to be reviewed by
the Judiciary.


WHAT IS THE GOVERNMENT?


Mr.. President, that this is necessarily
the case, from the simple reading of
the Constitution, seems to me cannot
be for a moment denied. The Presi-
dent, in assuming to execute this guar
antee 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
fore. as this guarantee must be a leg
islative 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 ex-
ecuted in the form of law, first to be
passed by Congress, and then to be
submitted to the President for his ap
proVal, and if he does not approve it,
then to be passed oyer his head by
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. l send to the Secretary and
ask him to read part of the decision
of the Supreme Court of the United
States il 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
interfere in the domestic concerns of
State, has treated the subject as politi-
cal 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 Uni
ted States 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
against inVasions and upon the appi-
cation of the Legislature or of the Ex--
ecutive (when the Legislature cannot
be convenedl against domestic Yio-
lence.


"Under this article of the Constitu-
tion it rests with Congress to decide
what government is the established one
in a State. For, as the United States
guarantees to each State a republican
government, Congress must 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 q State are admitted into the coun-
ciIs of the Union the authority of the
under which they are ap-
pointed, as well as its republican char
acter, is recognized by the proper con-
stitutional authority. And its decision
is binding upon every other depart
ment of the Government, and could
not be questioned in 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 Sena-
tors or Representatives were elected
under the authority OF the Government
of which Mr.. Dorr was the head, Con-
gress 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,
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 reading of tine
Constitution is confirmed by the high
est judicial authority which we have.


Mr.. johnson. Do you read from the
opiuion delivered by the Chief Justice!


Mr.. Morton. Yes, sir; the opinion
deliyered BY Chief Justice Taney. He
decides that this power is not Judicial
that it is one of the high powers con-
farrad upon Congress; that IL is not