CHAPTER XLII.

NATIONAL GUARANTEES TO THE STATES.

ARTICLE IV.

Section 4.-The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.

598. The States Republican.-With certain limitations imposed by the National Constitution, the States are left free to organize their own governments in their own way. One of these limitations is that their governments shall be republican. A State can be suffered neither to set up a non-republican government for itself nor to continue under one imposed by another power. This is rendered necessary by the nature of the American system; a monarchical state in a federal republic would surely be an anomaly.

599. Congress to Decide.-The Constitution does not say what authority shall exercise this power of guarantee, or even define a republican government. The guarantee itself involves the power to decide all questions growing out of it. In 1841-42 there were in the State of Rhode Island two governments, each claiming to be established. In the celebrated case of Luther v. Borden, 1 which grew out of the controversey, the Supreme Court decided that this power resides in Congress. "And its decision [that of Congress] is binding on every other department of the Government, and could not be questioned in a judicial tribunal."

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600. Invasion and Domestic Violence.-Protecting a State against invasion and violence is protecting the Union itself; and it is the more reasonable that the Nation should furnish it because of the denial to the States of the right to keep ships of war and troops in time of peace. The laws make it the duty of the President to afford this protection, and they give him power to use the standing army and to call out the militia for this purpose. In a case of invasion, no application for protection is necessary; the President, as commander-in-chief, chooses his own time and mode of action; but in case of violence the procedure is very different.

601. Procedure in Cases of Violence.-Domestic violence is resistance to the law and authority of a State; to suppress it is, first, the duty of the State authorities. The President cannot even issue a proclamation commanding law-breakers to disperse until a formal application has been made to him, unless the operations of the National Government are interfered with.

The common mode of proceeding when State laws are resisted, is this: (1) The local police, as the sheriff and his posse, attempt to maintain order; (2) failing in the attempt, the sheriff calls upon the Governor of the State for aid; (3) the Governor, if in his judgment the emergency calls for it, orders out the State militia; (4) the militia failing, the Governor, or the Legislature if in session, makes an application for aid to the President, who (5) becomes the judge of the emergency. It is important to state, however, that if the insurrection in any way interrupts the operations of the National Government, the President can, if he thinks necessary, at once send the National troops or call out the militia to put an end to such interruption.

602. Reasons for the Distinction.-The reasons for making the distinction between invasion and violence are obvious. Invasion is not only the more imminent peril, but it is also a direct challenge of the National authority. On the other hand, it is the duty of any government, as a State government, to enforce its own laws. A government that cannot ordinarily enforce its own laws, but must rely upon another government to do so, is no government at all.

It lacks the essential coercive element. Still more, a State would naturally resent all offers of unnecessary protection as an interference in its affairs: not to do so would be a confession of weakness. Again, the frequent employment of the National forces by the President for such purposes, would tend to centralize power and perhaps to establish a military despotism. Hence the National Government's power to interfere is limited by a formal application for protection. The preference of the Legislature to the Governor in making the application, also arises from fear of centralized power.

603. Direct Relation of National Authority to Domestic Violence.-Still it must not be supposed that the National authority, in striking at domestic violence, pursues in every case the roundabout course that has been described. The President is sworn to see that the National laws are faithfully executed; and if public lawlessness in any way trenches upon those laws, if the operations of the Government are in any way interfered with, then it is his right and duty to intervene, provided, in his judgment, such intervention is necessary. Ordinarily he will, in such case, like the Governor of a State, look first to the civil processes of the courts; these failing, he will issue his proclamation commanding rioters or insurgents to disperse, and then, if he deems it necessary, send the National troops, or even call out the militia of the States, to maintain the public peace. The President can put soldiers on the mail cars to defend the mails, although he cannot put them on passenger cars to defend the lives of passengers, unless called upon by the State authority. President Lincoln acted in accordance with this power in issuing his proclamation of April 15, 1861. President Cleveland did the same in reference to the railroad riots in Chicago in June and July, 1894.

Replying to Governor Altgeld, of Illinois, who had complained that his action was unwarranted, President Cleveland said: "Federal troops were sent to Chicago in strict accordance with the Constitution and laws of the United States, upon the demand of the Post

Office Department that obstruction of the mails should be removed, and upon the representation of the judicial officers of the United States that processes of the Federal courts could not be executed through the ordinary means, and upon abundant proof that conspiracies existed against commerce between the States. To meet these conditions, which are clearly within the province of Federal authority, the presence of Federal troops in the city of Chicago was deemed not only proper, but necessary, and there has been no intention of thereby interfering with the plain duty of the local authorities to preserve the peace of the city." A case involving the powers of the National Government in such emergencies went up to the Supreme Court from the Circuit Court of the United States for the Northern District of Illinois, in the decision of which the President was sustained. The Court held: (1) That the Government of the United States has jurisdiction over every foot of soil within its territory, and acts upon each citizen; (2) That it has full attributes of sovereignty over interstate commerce and the transmission of the mails; (3) That the powers thus conferred have been assumed and put into practical exercise by Congressional legislation; (4) That in the exercise of these powers the Government may remove natural or artificial obstructions to the passage of interstate commerce or the carrying of the mails.1

NOTE.-The fact that under our system of government the suppression of insurrection and domestic violence, or in other words, the maintenance of public order, falls in the first instance upon the State rather than upon the Nation, has led to some serious diplomatic controversies. Reference may be made to the McLeod case, 1840-41 (See Lalor's Cyclopedia," McLeod case," and Curtis's Life of Daniel Webster, Vol. II.). Also to the New Orleans riot of 1891, which resulted in the murder of a number of Italian subjects, and to the similar Colorado case occurring in 1895, which were of a very different character. The McLeod case, which came near involving us in war with England, led to the enacting of a law by Congress that, if such cases should thenceforth arise, they should be transferred from the State to the United States courts by writ of habeas corpus. The common usage of civilized nations requires one power to protect the lives and properties of unoffending subjects or citizens of other powers who are either temporarily or permanently within its territory. Moreover, the National Government enters into treaty relations with foreign powers guaranteeing such protection; but under our system the practical guarantee is furnished by the States, not the Nation. The result is that when such subjects or citizens are not duly protected by the State authority, and the power having jurisdiction prefers a complaint or makes a demand for such protection at Washington, the National authorities have nothing to say, except that it is the duty of the States to maintain public order, and that they do not hold themselves responsible. The predicament is an embarassing one. A foreign power knows nothing of the States, but does know the United States, and looks to them for redress. Mr. Blaine, Secretary of State at the time of the New Orleans riot, made the families of the murdered Italians a pecuniary compensation, taking the money from the contingent fund of the State Department. It will not be surprising if, as our foreign relations become more complicated, we shall think it wise to adopt some change in our policy in this particular.

1 In re Debs, petitioner, 158 U. S. 564. See also 64 Federal Reporter, 724.

CHAPTER XLIII.

AMENDMENTS.

ARTICLE V.

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures 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; 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.

604. Need of the Power.-Changes in the social conditions of a people, which are especially rapid in young and growing states, necessitate changes in the constitution as well as in the laws. At the same time frequent changes are undesirable or they tend to keep the country in turmoil and to beget contempt for the constitution itself. Writers on law teach, and experience confirms the teaching, that fundamental laws should be drawn in broad and comprehensive terms, and not be subject to easy changes. The Articles of Confederation were practically incapable of amendment, and this fact hastened the decline of the Confederation, and so made way for the present Government. The Convention of 1787 guarded well both points of danger; it is not easy to amend the Constitution, but it is possible. During the century that has passed since it went