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CONGRESS, UNITED STATES. 



osition, that the power of the United States 

 to reconstruct and guarantee republican 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 it 

 shall be exercised. The Constitution says that 

 'the United States shall guarantee to every 

 State in this Union a republican form of gov- 

 ernment.' By the phrase 'United States' 

 here is meant the Government 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 Gov- 

 ernment of the United States shall guarantee to 

 every State in this Union a republican form of- 

 government.' 



"Then, as the Government of the United 

 States is to execute this guarantee, the question 

 arises, what constitutes 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 

 as this guarantee is to be executed by the 

 Government of the United States, it follows ne- 

 cessarily 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 pro- 

 vision, without assuming that he was the Gov- 

 ernment of the United States. Congress could 

 not of itself assume to execute the guarantee 

 without assuming that it was the Government 

 of the United States ; nor could the judiciary 

 without a like assumption. The act must be 

 the act of the Government, and therefore it 

 must be a legislative act, a law passed by Con- 

 gress, submitted to the President for his appro- 

 val, and perhaps, in a proper case, subject to 

 be reviewed by the judiciary. 



" Mr. President, that this is necessarily the 

 case from the simple reading of the Constitu- 

 tion seems to me cannot be for a moment de- 

 nied. The President, in assuming to execute 

 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 a legislative 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 executed in the form 

 of a law, first to be passed by Congress, and 

 then to be submitted to the President for his 

 approval, and, if he does not approve it, then to 

 be passed over his head by a majority of two- 

 thirds in each House. That law, then, be- 

 comes 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 w. 

 Borden, as reported in 7 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 authorized the General Government to 

 interfere in the domestic concerns of a 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 Con- 

 stitution of the United States provides that the Uni- 

 ted States shall guarantee to every State in the Union 

 a republican form of government, and shall protect 

 each of them against invasions ; and, upon the appli- 

 cation 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 

 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 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 upon every other department of the Govern- 

 ment, and could not be questioned in a judicial tribu- 

 nal. 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 Eepresentatives 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, delivered many 

 years ago, the right to execute the guarantee 

 provided for in this clause of the Constitution 

 is placed in Congress, and nowhere else, and 

 therefore the necessary reading of the Consti- 

 tution is confirmed by the highest judicial au- 

 thority which we have. 



" I therefore, Mr. President, take the prop- 

 osition as conclusively established, both by 

 reason and authority, that this clause of the 

 Constitution can be executed only by Con- 

 gress ; and taking that as established, I now 

 proceed to consider what are the powers of 

 Congress in the execution of the guarantee, how- 

 it shall be executed, and what means may be 

 employed for that purpose. The Constitution 

 does not define the means. It does not say 

 how the guarantee shall be executed. All 

 that is left to the determination of Congress. 

 As to the particular character of the means 

 that must be employed, that, I take it, will 

 depend upon the peculiar circumstances of 

 each case ; and the extent of the power will 

 depend upon the other question as to what 

 may be required for the purpose of maintain- 

 ing or guaranteeing a loyal republican form 

 of government in each State. I use the word 

 'loyal,' although it is not used in the Consti- 

 tution, because loyalty is an inhering qualifi- 

 cation not only in regard to persons who are 

 to fill public offices, but in regard to State gov- 

 ernments, and we have no right to recognize a 



