312 



CONGRESS, U. S. 



" Congress must have jurisdiction over every 

 portion of the United States where there is no 

 other government; but there can be no other 

 government in the rebel States, so that the 

 words of Chief Justice Marshall are as applica- 

 ble to a State Avithout a loyal State government 

 as they were originally to a Territory : 



Perhaps the power of governing a Territory be- 

 longing to the United States, which has not by be- 

 coming a State acquired the means of self-govern- 

 ment, may result necessarily from the facts that it is 

 not within the jurisdiction of any particular State, 

 and is within the power and jurisdiction of the United 

 States. American Insurance Company vs. Carter, 

 I Peters, 532. 



" The three things which are here affirmed 

 of a Territory, may all be affirmed of a rebel 

 State : 



" First. It has not the means of self-govern- 

 ment. 



" Secondly. It is not within the jurisdiction 

 of any particular State. 



" Thirdly. It is within the power and juris- 

 diction of the United States. 



" From these again the necessity of congres- 

 sional jurisdiction ensues. 



"2. It would be unreasonable, if not absurd, 

 for each Chamber to determine the question of 

 representation for itself. Suppose, for instance, 

 that the Senate admit claimants from Arkansas 

 and the House reject them. Then we should 

 witness the anomaly of a State admitted to one 

 Chamber and excluded from the other. This 

 would be a case of semi-admission into the 

 Union. Part would be in and part out. The 

 Senators and Representatives of the same State 

 would be compelled to separate, as in Grecian 

 mythology, when one of the inseparable twins, 

 Castor and Pollux, was translated to Olympus, 

 and the other was left upon earth. Surely the 

 Constitution does not contemplate the repetition 

 of any such fable. Arkansas must stay away 

 until she can be received in both Houses and 

 can be recognized as a unit and not as a frac- 

 tion; but no power short of Congress can 

 assure this equal reception in both Houses. 



" 3. Authority is in harmony with reason. 

 This question seems to have been anticipated 

 by the opinion of the Supreme Court of the 

 United States, as pronounced by Chief Justice 

 Taney in the case of Luih&r vs. Borden (7 

 Howard's Reports, 42). Here are the words : 



The fourth section of the fourth article of the Con- 

 stitution of the United States, provides Ihnt the 

 United States shall guarantee to every State in the 

 Union a republican form of government, and shall 

 protect each of them against invasion, and, on the 

 application of the Legislature, or of the Executive 

 (when the Legislature cannot be convened), against 

 domestic violence. 



Under this article of the Constitution, it rests with 

 Congress to decide what government is the estab- 

 lished one in a State. For as the United States 

 guarantee 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 Sen- 

 ators and Representatives of a State are admitted 

 into the councils of the Union, the authority of the 



government under which they are appointed, as well 

 as its republican character, is recognized by the 

 proper constitutional authority. And its decision is 

 binding on every other department of the Govern- 

 ment, and could not be questioned in a judicial 

 tribunal. 



" According to these positive words 'it rests 

 with Congress to decide what government is 

 the established one of a State.' But Congress 

 can decide only through joint action. 



" 4. The Constitution also, by a positive text, 

 seems to place the question beyond doubt. 

 There are express words, as we have already 

 seen, declaring that 'the United States shall 

 guarantee to every State in this Union a repub- 

 lican form of government.' If these words 

 stood alone, the case would be clear; but it 

 becomes clearer still when we revert to the 

 other clause by which it is provided that 'the 

 Congress shall have power to make all laws 

 which shall be necessary and proper for carry- 

 ing into execution all powers vested by this 

 Constitution in the Government of the United 

 States.' Now, since the guaranty is vested in 

 the Government of the United States, it follows 

 that Congress has the power for carrying it 

 into execution. In Arkansas a republican gov- 

 ernment has been overthrown by rebellion. 

 Congress must see that such government is 

 restored ; ard to this end it has all needful 

 power. Congress, and not the President, must 

 dicide when the restoration has taken place. 



" 5. There is also the President's proclama- 

 tion, which, by its very terms, necessarily im- 

 plies the action of Congress in the restoration 

 of a State to the Union. There is first the posi- 

 tive declaration that 'whether members sent 

 to Congress from any State shall be admitted 

 to seats constitutionally rests exclusively with 

 the respective Houses, and not to any extent 

 with the Executive.' But the language of the 

 proclamation and of the accompanying message 

 plainly assumes that the rebel States have lost 

 their original character as States of the Union. 

 Thus in one place the President says that ' loyal 

 State governments have for a long time been 

 subverted.' But if subverted, they are no 

 longer States. In another place he proposes ' to 

 reinaugurate loyal State governments.' But a 

 proposition to reinaugurate implies a new start. 

 In another place he proposes to ' reestablish a 

 State government which shall be republican.' 

 But we do not reestablish a government which 

 continues to exist. In another place he pro- 

 poses to ' set up ' a State government in the 

 mode prescribed. But whatever requires to be 

 set up is evidently down. In another place he 

 seeks to guarantee and protect a ' revived State 

 government.' But we revive only what is dead, 

 or at least faint. There is still another place, 

 where the President evidently looks to the pos- 

 sibility of a change of name, boundary, sub- 

 division, constitution, and general code of lawa 

 in the restored State. These are his identical 

 words : ' And it is suggested as not improper 

 that in constructing a loyal State government 

 in a State, the name of the State, the boundary, 



