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RECONSTRUCTION,



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SPEECH OF HON. 0. P. MORTON,



IN THE U. S. SENATE, JANUARY 24, 18C8, ON THE CONSTITU-
TIONALITY OF THE RECONSTRUCTION ACTS.



Mr. President: If I had not been referred
tu by my honorable friend from Wisconsin
(Mr. Doolittle) in the debate yesterday I
Bhould not desire to speak on this question,
especially at this time. I fear that I shall not
have the strength to say what I wish to.

The issue here to-day is the same which pre-
vails thronghont the country, which will be
the issue of this canvass, and perhaps for
years to come. To repeat what I have had
occasion to say elsewhere, it is between two
paramount ideas, each struggling for the su-
premacy. One is, that the war to suppress
the rebellion was right and just on our part;
that the rebels forfeited their civil and politi-
cal rights, and can only be restored to them
upon such conditions as the nation may pre-
scribe for its future safety and prosperity.
The other idea is, that the rebellion was not
Binful, but was right; that those engaged in it
forfeited no rights, civil or political, and have
a right to take charge of their State govern-
ments and be restored to their representation
in Congress just as if there had been no re-
bellion and nothing had occurred. The im-
mediate issue before the Senate now is be-
tween the existing State* governments estab-
lished under the policy of the President of the
United States in the rebel States and the plan
of reconstruction presented by Congress.

When a surveyor first enters a new territory
he endeavors to ascertain the exact latitude
and longitude of a given spot, and from that
can safely begin his survey; and so I will en-
deavor to ascertain a proposition in this debate
upon which both parties are agreed, and start
from that proposition. That proposition is,
that at the end of the war, in the spring of
1865, the rebel States were without State gov-
ernments of any kind. The loyal State gov-
ernments existing at the beginning ©f the war
had been overturned by the rebels; the rebel
State governments erected during the war had
been overturned by our armies, and at the end
of the war there were no governments of any
kind existing in those States. This fact was
recognized distinctly by the President of the
United States in his proclamation under which
the work of reconstruction was commenced in
North Carolina in 1865, to which I beg leave
to refer. The others were mere copies of this
proclamation. In that proclamation he says:
And whereas the rebellion, which has been waged
by a portion of the people of the United States
against the properly constituted authorities of
the Government thereof, in the most violent and
revolting form, but whose organized and arm«d



forces have now been almost entirely overcome,
has in its revolutionary progress deprived the peo-
ple of the ^tate of North Carolina of all civil gov-
ernment.

Here the President must be allowed to speak
for his party, and I shall accept this as a pro-
position a2;reed upon on both sides: that at the
end of the war there were no governments of
any kind existing in those States.

The fourth section of the fourth article of
the Constitution declares that "the United
States shall guarantee to every State in this
Union a republican form of government."
This provision contains a vast, undefined
power that has never yet been ascertained — a
great supervisory power given to the United
States to enable them to keep the States in
their orbits, to preserve them from anarchy,
revolution, and rebellion. The measure of
power thus conferred upon the Government of
the United States can only be determined by
that which is requisite to guarantee or main-
tain in each State a legal and republican form
of government. Whatever power, therefore,
may be necessary to enable the Government of
the United States thus to maintain In each State
a republican form of government is conveyed
by this provision.

Now, Mr. Pi'esident, when the war ended
and these States were found without govern-
ments of any kind, the jurisdiction of the
United States, under this provision of the Con-
stitution, at once attached; the power to reor-
ganize State governments, to use the common
word, to reconstruct, to maintain and guaran-
tee republican State governments in those
States at once attached under this provision.
Upon this proposition there is also a concur-
rence of the two parties. The President has
distinctly recognized the application of this
clause of the Constitution. He has recognized
the fact that its jurisdiction attached when
those States were found without republican
State governments, and he himself claimed to
act under this clause of the Constitution. I
will read the preamble of the Fresideat's pro-
clamation.

Whereas the fourth section of the fourth article
of the Constitution ol the United States declare!
that the United States shall guarantee to every
State in the Union a republican lorm of govern-
ment, and shall protect each of them against inva-
sion and domestic violence; and whereas the Pr^
sident of the United States la by the Constitution
made Commander-lD-Uhief of the Army and Navy,
as well as chief civil executive ofBcer of the United
States, and Is bound by solemn oath faithfully to
execute the office of President of the United
btates, and to take care that the laws be faithfully



.Mi??^s



rse utC'l: anrt whereas the rel.c lion which has
V'ecn waced bv a portion of «h<> i cople of the
Inited St 'te«'aL'alnpt thn properly tor?tltu'cil
Butlniritlcs of the Govcrniueiit liicroof in iho luos''.
violent ami revoltintt form, hut whofe orpanljcj
and armctl forces have now heen almost entirely
overcome, has, iu Its revolutloriarv proure??, de-
prived the people of the .Slate of North Carolina
of all civil eovernment; ana whereof- it l>eoom»s
necessary and proper to carrv out nrnl eulorca the
obllfiatlons of the people of He Vnltod States to
the people of North Carolina In se 'urint: them In
the enjoyment of a republican form ol govern-
uient.

I read this, Mr. President, for the puipose of
fliowiiic: that the Treeideut of the United
States, in his polic)- of reconstruction, started
out with a distinct i-ecognition of the ai'plica-
bility of this clause of the Constitution, and
that he based his system of reconstruction
ujion it. It is true that he recites in this pro-
clamation that he is the Cotmuander-in-chief
ofthearmyof the United States; but at the
same time he puts his plan of reconstrnoiiou
not upon the exercise of the military jiowcr
which is called to its aid, but on the execution
of the euaranty provided by the clause of the
ConstitTition to which I have referred. lie ap-
points a Governor for North Carolina and for
these other States, the oOice beins: civil in its
character, but military in its eifects. This
Governor has all the power of one of the dis-
trict commanders, and, in fact, far fireater
power than was conferred upon General Pope
or General Sheridan, or any jreneral in com-
mand of a distiicl; for it is further provided:

That the military coramander of the dejiart-
ment, and all officers »nd persons In the military
and naval service, a'd and assist the said provl-
f-lonal governor in carrying into effect this procla.-
uation.

We are then agreed upon the second propo-
sition, that the power of the United Siates to
reconstruct and guarantee republiean 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, beintc
agreed upon these two propositions, we are
brought to the question as to the proper I'orra
of exercising this power and by whom io shall
be exercised. The Constitution says that "the
Uiiited Stales shall guarantee to every State in
this Union a republican form of government."
By the phrase '"United States" liere is meant
the Government of the United States. The
United Slates can only act through the Gov-
ernment, and the clause would mean precisely
the same thing if it read "the Government of
the United Slates shall guarantee to every
Stale in this Ujiion a republican form of gov-
eminent." r

Tlicn, as the Government of the United
States is to exetote this guaranty, the ques-
tion arises, what constitutes the Government
of the United States ? The President does not
constitute the Government; the Congress does
not constltnte the Government; the judiciary
does not constitute the Government: but all
three together constitute the Government; and
as this guaranty ia to be executed by the
Governtaent of -the United States, it follows
necefparily that ili must be a Iccislative act.
The President could not assume to eicecute the
guaranty without assuming that he was iho
United Stales within the meaning of ibut pro-
vicion, wiltiout aswimine that he was the (iov-
••rnm'Mit of the United States. Congress could
not of iti-elf assume to execute the guaranty
^ftivH aMruuut4( UiA^ it tvos llic Goveiumeut



of the United States; nor conld the judiciary
without a lilie 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 t» the President for his ap-
proval, 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-
Died. The President, in assuming to execute
this guaranty himself, is assuming to be the
Government of the United Stales, which he
clearly is not, but only one of its coordinate
branches ; and, therefore, as this guaranty
must be a legislative act, it follows that the
attempt on the part of the President to execute
the guaranty was without authority, and that
the guaranty can only be executed iu the form
of a law, tirst 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 ia each House. That law, then, be-
comes the execution of the guaranty and is
the act of the Government of the United States.

Mr. P.-esident, 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 vs.
Borden, as reported in 7 Howard.

The Secretary read as follews:

Moreover, the Constitution of the United States,
as far as it has provided for an emergency of thlJ
kin<l, 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 fonrth article of the
Constitution of the United States provides that
the United .States shall g-uarantee to every State
in the Union a republican form of government,
and shall protect each of them against invasions;
and upon the applieaMon of the Lecrislature or of
the Executive (when the Legislature cannot be
convened) against domestic violence.

Under this article of the Constitution it rests
with Contrress to decide what government is the
establisled one In a State. For, as the United
State's guarantees to each State a republican
government, Congress must necessarily decide
what govtrnraont is established In the State be-
fore i', c>in determine whether it is republican or
not. And when the Senators and Kepresentatives
o^a State a'e admitted Into the councils of the
Union, the authority of the government under
which they are appointed, as well as its republi-
can character, is recognized by the proper const i-
lutloiial authority. And its decision is binding
upoQ every other department of the Government,
and could not bo questioned in a judicial tribunal.
It is true that the contest in this case did not last
long enough to brinir the matter to this issue;
and as no Senators or Representatives wereelected
under the authority of the Government of which
Wr. Dorr was the head. Congress was not called
upon to decide the controversy. Yet the right to
decide le placed there, and not in the courts.

Mr. Morton. In this opinion of the
8u['rcme Court of the United States, delivered
many years ago, the right to execute the gua-
ranty provided for in this clause of the Con-
Btitution, is placed in Congress and nowhere
else, and therefore the necessary reading of
the Constitution is conflrmeii by the highest
judicial authority which we Lave.

Mr. Johnsou. Do you read from the
ojiinion dolivered by the Chief Justice?

Mr. Morton. Yes, sir; the opinion deliv-
ered by Chief Justice Taney. He decides that
this I'ower is not judicial; that it is one of tbe
high powers conferred upon Congress; that it



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is not subject to be reviewed by the Supreme
Court, because it is political iu its nature. It
is a distinct eniirciation of the doctiine tliat
this i^uarauty is uot to be executed by the
President or by the Supreme Court, but by the
Congress of the United States, in the form of a
law to be passed by that body and to be sub-
mitted to the President for his approval; and
should he disapprove it, it may become a law
by beiuq: passed by a two-thirds majority over
his head.

Now, I will call the attention of my friend
from Wisconsin to some other authority. As he
has been pleased to refer to a former speech of
mine to show that I am not (luite consistent, I
will refer to a vote given by him in ISOt on a
very important provision. On the Ist of July,
1864, the Senate having under consideration, as
in Committee of the Wbole, "a bill to guarantee
to certain States whose governmeuts have
been usurped or overthrown a republican form
of government," ^Mr. Brown, of Missouri,
ollered an amendment to strike out all of the
bill after the enacting clause and to insert a
substitute, which I will ask the Secretary to
read.

The Secretary read as follows :

That when the Inhabitants of any State have
been declared in a state of insurrection ati,alnst ttio
Uniied :states by proclamation of tho Vre.Mtlenr,
by force and virtue of the act entltltd "jVu act
further to proviilS for the colleciion of duties on
imports, and for other jjurposes," approved July
13, 1801, they si'iiU be, and are hereby declared to
be, incapable of casting any vote lor electors of
Pretident or Vice Presideni ol the United States,
or of e'ecting tenators or Representatives in Oon«
i^iess until sail insurrection i suid Sti'.te if sup-
pressed or abandoned, and SitiJ Inhabitants have
leturr ed to their otedience to the Gavevnn'ent of
the United States, and until such return to oiicdi-
ence shall be declared by proclamation of the
President, issued hy virtue of an act of Congress
hereafter to be passed, authorizing the same.

Mr. Morton. The honorable Senator from
Wisconsin voted for that in Committee of the
Whole and on its final passage. I call atten-
tion to the conclusion of the amendment, which
declares that they shall be —

Incapable of casting any vote for electors of
Presioent or Vice President of the Unied States
or of electing Senators or Eepresentali\ es in
Congress until said iosarrection in said state is
suppressed or abandoned, and said inhabitants
have returned to their obedience to the Govern-
ment of the United states, and until such return
and obedience shall be declared by proclamation
of the President, issued by virtue of an act of
Congress hereafter to be passed, authorizing the
same.

Recognizing that a state of war shall be re-
garded as continuing until it shall be declared
no longer to exist by the President, in virtue
of an act of Congress to be hereafter passed.
I am glad to find by looking at the vote that
the distinguished Senator from Maryland (Mr.
Johnson) voted for this proposition, and thus
recognized the docti-ine for which I am now
contending: that the power to execute the
guaranty is vested in Congress alone, and that
it is for Congress alone to determine the status
and condition of those States, and that the
President has no power to proclaim peace or
to declare the political condition of those
States until he shall first have been thereunto
authorized by an act of Congress.

I therefore, Mr. President, take the proposi-
tion as conclusively established, both by reason
and authority, that this clause of the Constitu-
tion can be executed only by Congress; and



taking that as ostablishecl, I now proceed to
consider what are the powers of Congress in
tlic execution of the guaranty, how it shall
be executed, and what means maybe employed
for that purpose. The Constitution does not
define the means. It does uot say how the
guaranty shall bo 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 [lowcr will depend upon the other
<luesiion as to what may be required for the
I'urpose of maintaining or guaranteeing a loyal
republican form of government in each State.
I use the word "loyal," although it is not used
in the Constitution, because loyalty is an in-
hering qualification, not only in regard to per-
sons who are to fill public oliices, but in regard
to State governments, and we have no right to
recognize a State government that is not loyal
to the Government of the United States. Now,
sir, as to the use of means that are not pre-
scribed in the Constitution, I call the attention
of the Senate to the eighteenth clause of sec-
tion eight of the first article of the Constitu-
tion of the United States, which declares that:
The Congress shall have power to make all laws
which shall be necessary and proper for carrying
into execution the foregoing powers and aU other
liowers vested by this Constitution in the Govern-
ment of the United States or any department or
ofQcer thereof

Here is a declaration of what would other-
wise be a general principle anyhow: that Con-
gress shall have the power to pass all laws
necessary to carry into execution all powers
that are vested in the Government under the
Constitution. As Congress has the power to
guarantee or maintain a loyal republican govern-
ment in each State, it has the right to use
whatever means may be necessary for that pur-
pose. As I before remarked, the character of
the means will depend upon the character of
the case. In one case it may be the use of an
army; in another case perhaps it may be sim-
ply presenting a fiuestion to the courts, and
having it tested in that way; in another case
it may go to the very foundation of the Gov-
ernment itself. And I now propound this pro-
position: that if Congress, after deliberation,
after long and bloody experience, shall come
to the conclusion that loyal republican State
governments cannot be erected and maintained
iu the rebel States upon the basis of the white
population, it has a right to raise up and make
voters of a class of men who had no right to
vote under the State laws. This is simply the
ttse of the necessary means in the execution of
the guaranty. If we have found after re-
peated tri'als that loyal republican State gov-
ernments — governments that shall answer the
purpose that such governments are intended to
answer — cannot be successfully founded upon
the basis of the white population, because the
great majority of that population are disloyal,
then Congress has a right to raise up a new
loyal voting population for the pirrpose of estab-
lishing these gevernraents in the execution of
the guaranty. I think, sir, this proposition is
so clear that it is not necessary to elaborate it.
We are not required to find in the Constitution
a particular grant of power for this purpose;
but we find a jreneral grant of power, and we
find also another grant of power authorizing
us to use whatever means may be necessary to
execute the first; and we Unt} that the Supreme



Court of the Uuited States has said that the
judgment of Uou2;ress upon this question shall
be conclusive; that it cannot bo reviewed by
the courts; that it is a purttly political matter;
and therefore the determination of Coufjress,
that raising up colored men to the right of suf-
frage is a means necessary to the execution of
that power, is a determination which cannot
be reviewed by the courts, and is conclusive
upon the people of this country.

The President of the United States, assum-
ing that he had the power to execute this
guaranty, and basing his proclamation upon
it, went forward in the work of reconrtruction.
it was understood at that time — it was so an-
nounced, if not by himself, at least formally
by the Secretary of State, Mr. Seward — that
the governments which ho would erect during
the vacation of Congress were to be erected as
provisional only; that his plan of reconstruc-
tion and the work that was to be done under it
would be submitted to Congress for its approval
or disapproval at the next session. If the
President had adhered to that determination I
believe that all would have been well, and that
the present state of things would not exist.
But, sir, tho Executive undertook finally to
execute the guaranty himself without the co-
operation of Congress. He appointed provi-
sional governors, giving to them unlimited
power until such time as the new State govern-
inents should be erected. lie prescribed in
his proclamation who should exercise the right
of sutrrasrc in the election of delegates. And
allow me for one momput to refer to that. lie
says in his proclamation:

No person shall be qualified as an elector, or
fball be eligible as a member of such cr'nventi"n,
unless he shall have previously taken and suIj-
fcrlbeil tho oath of amnesty, as set torttiin tho
President's proclamation of I>Iay 20, A. 1). 18U5—

which was issued on the same day and was a
part of the same transaction —
Ard Is a voter qualified as prescribed by the con-
Ftltution and laws ot the S'ateof North Carolina
la force Immodlatsly before tho 20th day of IMay,
A. D. ISSl.

The persons having the right to vote must
have the right to vote by the laws of the State,
and must, in addition to that, have taken the
oath of amnesty. The President disfranchised
iu voting for delegates to the conventions from
two hundred aud lifty thousand to three hun-
dred thousand men. His disfranchisement
was far greater than that which has been done
by Congress. In the proclamation of amnesty
he says:

Tto followlnp: classes of persons are excepted
from tho beneUts of this proclamation-
He then announced fourteen classes of per-
sons —

1. All who are or ehall have been pretended
civil or dlplomailo officers, or otherwise domostlo
or forelf^ agents, of tho pretended confederato
government.

• ••»»*«

i:?. All persons who have voluntarily partlel-
pated In said rebellion, and tho estttnated valuo
«jf whone taxable property is over twenty thou-
Eacd dollars.

And twelve other classes, estimated to num-
ber at the least two hundred and lifty thousand
or three hundred thousand men, while the dis-
franchisement that hag been created by Con-
gress does not extend perhops to more than
forty-live thousand or fifty thousand persons
at the furlhcBt. These provisional governors,
under the authority of the President, were to
tall conventions; they were to hold the elec-



tions, and they were to count the votes; they
were to exercise all the powers that are being
exercised by the military commanders under
the reconstruction acts of Congress. After
those constitutions were formed the President
went forward aud accepted them as being loyal
and republican in their character. He author-
ized the voters under them to proceed to elect
Legislatures, members of Congress, and the
Legislatures to elect Senators to take their
seals in this body. In other words, the Presi-
dent launched those Stale governments into
full life and activity without consultation with
or cooperation on the part of Congress.

Now, sir, when it is claimed that these gov-
erumeiils are legal, let it be remembered that
they took their oritrin under a proceeding insti-
tuted by the President of the Uuited States in
the execution of this guaranty, when it now
stands confessed that he could not execute the
guaranty. But even if he had the power, let
it be further borne in mind that those constitu-
tions were formed by conventions that were
elected by less than one-third of the white
voters iu the States at that time; that the con-


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