CONGRESS, UNITED STATES. 



165 



strued with reference to the powers actually 

 delegated, expressly given by some express 

 power of the Constitution, and upon that point 

 I refer to the very authority which the gentle- 

 man himself cited in his speech. He under- 

 took to show that, because Congress is au- 

 thorized to guarantee republican forms of 

 government, it may under this general clause do 

 any thing original in its effect, original in its 

 purpose, which shall in the end or may by 

 possibility restore republican governments. In 

 other words, the power which the gentleman 

 claims under this provision is that he may cre- 

 ate a republican form of government, and upon 

 that hang his guarantee upon that exercise 

 the power of guaranteeing republican form of 

 government. 



"But the gentleman devoted most of his 

 time to the first section of this bill. What is 

 that section ? It declares that ' the so-called 

 civil governments in those States respectively 

 shall not be recognized as valid or legal State 

 governments either by the executive or judi- 

 cial power or authority of the United States.' 



" Sir, I insist that that section is in direct 

 conflict with more than one provision of the 

 Constitution of the United States. The Con- 

 stitution provides that 'the executive power 

 is vested in the President.' It also provides 

 that * the judicial power is vested in one Su- 

 preme Court ' and such inferior courts as may 

 be established. Now, what does this bill pro- 

 vide ? It provides that these States shall not 

 be recognized as having valid and legal State 

 governments either by the executive or the 

 judicial power of the Government. 



" That is an injunction upon ' the exercise of 

 the power.' It is not that the President shall 

 not do a certain act, nor that the judges of the 

 court shall not perform certain specified acts, 

 but it is that 'the power' shall not be exer- 

 cised. It is a prohibitory injunction against 

 the exercise of a power granted by the Consti- 

 tution. If it merely prohibited the President 

 from doing some act not within the scope of 

 executive power, it might not, then, prohibit 

 the exercise of 'the executive power' con- 

 ferred upon him by the Constitution. If it 

 was to prevent the court from doing some par- 

 ticular act, it might not, then, restrict or pro- 

 hibit the exercise of ' the judicial power.' 



" But there is a power vested in the execu- 

 tive and the judiciary coming from the same 

 source from which Congress derives all its power, 

 the original source of all governmental power, 

 the people. This bill attempts to circumscribe 

 and limit the exercise of ' the power ' itself, 

 a power not conferred upon Congress, not sub- 

 ject to its control. The executive and judicial 

 power is as much above and beyond the con- 

 trol of Congress as is the legislative power 

 vested in Congress by the Constitution above 

 the control of the executive and the judiciary. 

 And yet this bill by its terms expressly declares 

 that these powers of the executive and the judi- 

 ciary shall not in a given case be exercised. 



What is this but the exercise of these powers 

 by the Congress ? If it may say when and 

 when not the powers shall move, if its discre- 

 tion and not theirs is to determine when they 

 shall be put in force, they are both overthrown 

 and destroyed." 



Mr. Boutwell, of Massachusetts, followed, 

 saying: "I desire to call the attention of the 

 House to the provision of the Constitution 

 which provides that the Government of the 

 United States shall guarantee to each State a 

 government republican in form, and also to the 

 nature of the guarantee which the Government 

 of the United States are bound to furnish. The 

 word 'guarantee' in the Constitution has a 

 larger meaning than is given to it when used 

 in reference to the individual relations of men. 

 The Constitution guarantees to each State a 

 government republican in form. Suppose in a 

 given State we find on observation that there 

 is no government, what, then, is the force and 

 effect of our guarantee ? To create for them a 

 government republican in form ? No, sir ; be- 

 cause on our theory a republican form of 

 government cannot be constructed in that way. 

 The effect of our guarantee is this : we provide 

 the ways and means and furnish incidental 

 security by which the people themselves set up 

 a republican form of government, and which, 

 when set up, we inspect ; and, if, in the judg- 

 ment of the Congress of the United States, it is 

 republican in form, we then guarantee that gov- 

 ernment to the State. In the next place, if we 

 find a government not republican in form, then 

 the United States are bound in some way to 

 remove it and to give the people an opportunity 

 to establish a republican form of government. 

 We must perform this service, or otherwise 

 the provision of the Constitution is utterly 

 ineffectual. If in a State you find there is no 

 government, is not your obligation under the 

 Constitution binding upon you to guarantee- to 

 them a government republican in form ? And 

 is not the guarantee entirely inoperative unless 

 you furnish ways and means and security 

 through which they may form a government ? 

 If hi another State you find a government 

 manifestly not republican in form, a monarchy, 

 an aristocracy, a military government, are you 

 obliged to be silent, to be inactive, to allow 

 that government to continue, as inevitably you 

 must if the doctrine maintained on the other 

 side of the House be true, that it is only when 

 there is a republican government that this 

 provision of the Constitution becomes opera- 

 tive? You must remove these governments 

 and give the people an opportunity to set up a 

 republican government. And this was the 

 doctrine of the Supreme Court in the case of 

 Luther vs. Borden, to which reference has so 

 often been made. The court say : 



Unquestionably a military government, established 

 as the permanent government of a State, would not be 

 a rep u oilcan government, and it would be the duty of 

 Congress to overthrow it. 



And again, in the same case, the court say : 



