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Seott v.

205.

form of overn.

hereafter to be admitted. A “ State" (for the purpose of the judicial
poweri must be a member of the Union. It is not enough to be an
organized political body within the limits of the Union.
Jones, 5 How. 313, 377; Cherokee Nation v. Georgia, 5 Pet. 18.
But this is not so, as to the guaranty of a republican form of govern-
ment. That is in favor of the people—the citizens—as well as the
States.

"1 REPUBLICAN FORM OF GOVERNMENT.”-A government of the What is a people; it is nsually put in opposition to a monarchical or aristo- republican cratic government. This clause supposes a government already established, and this is the form of government the United States ment? have undertaken to guarantee. (Story's Const. § 1807.) Burrill's 475. Law Dic., REPUBLICAN GOVERNMENT.

This term h:1s of course received no practical authoritative defi- To what nition. It sipposes a pre-existing government of the form which is does the

guaranty to be guaranteed. As long, therefore, as the existing republican

extend ! forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to establish What is the other republican forms, they have a right to do so, and to claim the restriction ? federal guaranty for the latter. The only restriction imposed on them is, that they will not exchange republican for anti-republican constitutions; a restriction which it is presumed will bardly be considered as a grievance. (Federalist, No. 21; see Montesquieu, B. 9, chap. 1, 2; 1 Tuck. Black. App. 366, 367.) Story's Coust. § 1817; Federalist, No. 43, pp. 214, 215. But this still leaves the term undefined. except so far as the description may be derived from the character of the State governments wheu they formed this Constitution. The restrictions which they had imposed upon 235-241. themselves, and to which they agreed when they made this Con- 245-275. stitution the supreme law; and the rights of the citizens secured 16-18. by the amendments, which constitute a Bill of Rights. The first Luaranty is the elective principle. But upon whom the elective How is it franchise shall be conferred is not defined, and must be controlled affected by by circumstancts. The right need not be universal; and must not

principle: be to restricted. The next is, the model, upon which all our governments are based, legislative, executive, and judicial. Cer- 16–18. tainly the guaranty is to enforce upon the States the restrictions imposed upon them in the federal Constitution; that is, the States 273-278. shall not exercise the prohibited powers, nor the powers which 139–143. have been granted to and exercised by Congress. And now, prac. tically, we have the great examples, that where States deny the 71-135. obligation of the federal Constitution, and form a confederation What has among themselves upon the same model, although they may retain the same forms and constitutious of the State governments, yet the rebellion ? United States have regarded it as an occasion for the exercise of this power; have declared such existing State governments as in 274-276, 279. fact not republican; have annulled them, and have required new Constitutions to be formed, based upon the organic chunge, which liad destroyed slavery, and thus settled that it was no longer a republican institution. About the right to exercise this power, there has been no dispute. Unfortunately, the controversy has been, as to what department of the government of the United States

been the effect of the

275-277.

Who shall shall judge of the necessity and apply the remedy, and what shall judge.

be the extent of the organic changes in the States? If the praus. tice and common understanding in the admission of new States, and the precedent of Luther v. Borden, i low. I. are to control, then the question would seem to be settled in favor of the power of Congress to determine when a State government is republicain in form and in practice. -[EDITOR. See President Lincoln's proclamation of 1st Jan., 1863, and the amnesty proclamations, ani the proclamations of President Johnson, appointing provisional gore ernors; his directions decaring what the State conventions shall do, and declaring civil government restored. See also his mes. sages and veto messages upon the subject; the debates of the thirty-ninth and fortieth Congresses everywhere; the President's Messaue to the second session of the fortieth Congress, Dec. 3, 1867; the reporis of the joint committee upon reconstruction; the reconstruction acts; the majority and minority reports of the committee on judiciary upon the impeachment of the Presideut, and the debates of the thirty-uinth and fortieth Congresses thereon. McPherson's Manual, and Paschal's Annotated Digest, note 1lit.

* I take it that the States would not be allowed to establish primogeniture; to abolish the trial by jury in all cases; to unite tl.e Church and State; nor in any was to violate the great cardinal principles of liberty secured by the national Bill of Rights, and which

the fourteenth amendment seeks to extend to the States. I What laws cannot subscribe to the omnipotence of a State legislature, or

that it is absolute and without control, although its authority should principles of

not be restrained by the Constituition or fundamental law of the a republican State. The nature and end of legislative power will limit the exform of govercise of it. This fundamental principle flows from the very nature

of our free republican governments, that no man should be compelled to do what the law does not require, nor refruin from doing that which the law permits. There are certain vital principles in our free republican governments, which will determine and over. rule an apparent Hayrant abuse of legislative power, such as to authorize manifest injustice by a positive law, or to take away that

security for personal liberty or private property, for the protection 143, 156–161. whereof government was established." (l'alder v. Bull, 3 Dall. 350.)

Wynehamer v. The People, 13 X. Y. (3 Kerr.)391. 392. The cases of ex post facto law; impairing contracts; making a man accuse himself; taking A's property to give to B; punishing innocence as guilt, and violating property, cited. (Calder v. Bull, 3 Dall. 356; Fletcher v. Peck, 3 Cranch, 385; ash v. Van Kleek, 7 Johns. 477; Tavlor v. Porter, 4 Hill, 146; Goshen v. Stonington, 4 Conn. 225.) Wynehamer v. The People, 13 N. Y. 391, 392. See Wilkinson v. Leland, 2 Pet. 653; Harding v. Goodlet, 3 Yerg. 41; 2 Kent's Com. Ilth ed. p. 339, and notes.

That State must not boast of its civilization, nor of its progress in the principles of civil liberty, where the legislature has power to provide that a man may be condemned unheard. Oakley v. Aspin wall, 4 Comstock, 5.22.

would infract the

ernment!

231. “ AND SHALL PROTECT EACH OF THEM AGAINST INVA. SION."--Invasion has been defined in note 133. The means to be

What is
Invasion ?

ture!

476.

employed are the whole powers of declaring war and its incidents. 233. See Act of 12th Jan. 1862, 12 St. 589, 590. The latitude of expres- 117–183. sion here used, selures ench State not only again t foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. Story's Const. § 1818; Federalist, No. 43, p. 215.

235. “ AND ON THE APPLICATION OF THE LEGISLATURE, OR OF Who are THE EXECUTIVE (WHEN THE LEGISLATURE CANNOT BE CONVENED), the LegislaAGAINST DOMESTIC VIOLENCE.”—The President must determine

233, 234. what body of men constitute the legislature, and who is the gov. ernor; which is the government and which party is unlawfully arraved against it, before he can acı. Luther v. Borden, 7 How. 43-45. The history of the rebellion affords us these examples: 1. The case of Virginia. A large majority of the legislature of the State adhered to the rebellion, and after an ordinance of secession Give the Virginia became one of the Confederate Siates of America." But example of Congress recognized the minority of the legislature assemoled at

Virginia Wheeling as the legislature of Virginia, with authority to consent 229, 230. to the creation of the new State of West Virginia, which was ad. mitted into the Union. 2. In the case of Missouri. The majority of Misof the legislature and the governor adhered to the rebellion; and, souri: after the commencement of hostilities, passed an ordinance of secession; and the legislature elected senators, and a minority of the people elected representatives to the Confederate Congress at Richmond. This was in accordance with an enabling act of that Congress, and the State was admitted as a member of the “Confederate States," and continued to be represented until the overthrow of the rebellion. On the other hand, Missouri retained its place in the Union through the ency of a convention elected by the authority of an act of the legislature passed in 1860, which convention, having refused to pass an ordinance of secession, was reconvened upon the call of its president, and was recognized as the lawful authority of Missouri by the government of the United States. 3. In the case of Kentucky. The legislature refused to or Ken. call a convention or to pass an ordinance of secession. But a con- tucky? vention of rebels did assemble and pass an ordirance of secession; and senators and representatives were elected to the Congress of the “Confederate Siates," who served until the close of the rebel. lion. 4. Louisiana. This was one of the seven original seceded of Louis! States which adopted the Confederate Constitution ordained at ana? Montgomery, Alabama, in 1861. After the occupation of Louisi. ana hy the federal troops, a quorum of the rebel legislature could not be obtained. But it was solemnly decided by the Supreme Court of Louisiana, that so long as a single parish remained loyal to the Confederacy, such parish, or minority of the people, should he regarded as the State of Louisiana; and that the conquered districts of the State were lost to it, and would so remain until reconquered or restored by a treaty of peace. 5. Arkansas and Ten- Arkansas nesste had the same history as Louisiana. And yet all these prac. and Tennestically dissolved corporations and their exiled governors continued see? 10 be recognized by the Confederate government as the lawful authorities of those States. 6. Maryland. The majority of the legis- of Marylators being known to side with the rebellion, the assemblage of land?

that body was prevented by the military power of the United What is the States. Therefore, the country seems to be estopped upon the docdoctrine

tripe, that when the exigencies of the republic require it, the yote upon which the country ernment of a State, whether regular or irregular, majority or minoriis estopped? tv, which adheres to the Union and acknowledges the supremacy

of the federal Constitution, will be recognized and treated as the lawful legislature and executive entitled to the guara:.ty to be protected.

-- AGAINST DOMESTIC VIOLENCE."-By the first act of Congress to secure this guaranty (28th Feb., 1790, I Stat. 4.2+), it is provided, that " in case of an insurrection in any state against the government thereof, it shall be lawful for the Presideut of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any State, or States, as may be applied for, as he may judge sutficient to suppress such insurrection." Luther v. Borden, 7 How. 43; Brightly's Digest,

p. 440, § 1-4. What is If there be an armed conflict, it is a case of "domestic vio" domestic lence," and one of the parties must be in insurrection against the violence"!

Jawful government. As the law gives a discretionary power to the President, to be exercised by him upon his own opinion of certain faets, he is the sole and exclusive judge of the existence of those facts. If he err, Congress may apply the proper remedy. But the courts must administer the law as they find it. (Martin V. Mott, 12 Wieat. 29–31.) Luther v. Borden. 7 How. 44, 45. And see Act of 12th July, 1861. 12 St. 257; 2 Brightly's Dig. 1231, Tit. INSURRECTION; United States v. One hundred packages, 11 Am. L. R. 419; Kulp v Ricketts, 20 Leg. Int. 228: Vallandigham's Trial, 259: Hodgson v. Millwood, 20 Leg. Int. 60, 164; Ohio v. Bliss, 10 Pittsburgh L. J. 304. The acts upon

INSURRECTION are fully collected in 2 Brightly's Dig. p. 12301239. The framers of the Constitution seemed to have looked to the possibility of domestic violence by the slaves. Federalist, No. 43, p. 246.

ARTICLE V.

How are annend

made!

The Congress, whenever two-thirds of both houses ments to be shall deem it necessary, shall propose amendments to

this Constitution, or, on the application of the legisla139, 144, 145. tures of two-thirds of the several States, shall call a

convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

477.

provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

236. CONGRESS MAY PROPOSE AMENDMENTS, &c.— These terms Is the Presi. need no definition. Upon a call of Congress in regard to the sub- dent's apmission of the fourteenth amendment to the legislatures of the proval

necessary : States, President Johnson more than intimated an opinion, that the resolution proposing the amendment ought to be submitted to the President's approval. But the practice has been otherwise ; and as the reason for such a rule is superseded by the "two-66–70. thirds " vote, the rule itself ought to cease. It has been held that 275-277. the approval of the President is not necessary. Hollingsworth v. Virginia, 3 Dall. 378. All the amendments have been proposed to 244, 274, 275 the legislatures; none to couventious of the States. See Fed. eralist, No. 43; Story's Const. S 1826–1831; 1 Tucker's Black. Com. App. 371, 372. The amendments when made are binding upon the States.

242

ARTICLE VI.

[1.] All debts contracted, and engagements entered What dlebte into, before the adoption of this Constitution, shall be United as valid against the United States, under this Consti- assume ? tution, as under the Confederation.

237. UNITED STATES TO PAY THE DEBTS OF THE CONFED- Explained. ERATION.—This was but asserting a principle of moral obligation, which always applies to revolutions. See Story's Const. § 1832– 1835; Journal of Convention, 291; Jackson v. Lund, 3 Johns. Cases, 109; Kelly v. Harrison, 2 Id. 29; Terrett v. Taylor, 9 Cr. 50; Rut lierford Inst. B. 2, ch. 9. § 1, 2; ch. 10, S 14, 15; Vattel, Prelim. Dis. ch. 1, § 1; ch. 5, § 64; ch. 14, § 214–216; Grotius, B. 2, ch. 9, § 8, 9; Federalist, Nos. 43, 84; 1 Tuck. Black. Com. App. 368; Confederation, Art. XII. ante, p. 19.

The principle is, that revolution ought to have no effect what. soever upon private rights and contracts, or upon the public obligations of nations. Terrett v. Taylor, 9 Cr. 50.

[2.] This Constitution, and the laws of the United What is the States which shall be made in pursuance thereof, and law of the all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall

supreme

land?

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