New and more efficient provisions for the recovery of fugitive slaves were made by the act of September 18, 1850, but this created high political excitement, and led to much estrangement between the two sections of the country. The constitutionality of the act was denied in Wisconsin In re Booth, 3 Wis. 1; but it was affirmed by the Supreme Court of the United States in Ableman v. Booth, 21 How. 506, and also by the State courts generally. See particularly Sim's Case, 7 Cush. 285; and Bushnell's Case, 9 Ohio, N. S. 77. After the great rebellion broke out, all provisions for the restoration of fugitive slaves were repealed. CHAPTER XLI. GUARANTY OF REPUBLICAN GOVERNMENT MODE OF MAKING AMENDMENTS. § 1813. THE fourth section of the fourth article is as follows: "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." (a) (a) The meaning and force of this guaranty were somewhat considered in connection with the Rhode Island difficulties in 1841-2. That State, in the early days of the republic, had found the colonial charter a sufficient constitution for its needs, and had retained and acted under it as such. But that charter contained restrictions upon the elective franchise which were not admitted in the other States, and for some time previous to the difficulties alluded to a strong party in the State had demanded a new constitution with a view particularly to extending the basis of suffrage. The legislature, however, resisted that demand, until at length a convention, called without legis. lative authority, but claiming to represent the sovereignty of the people, met and framed a constitution, which was submitted to a vote of those who, under its provisions, were to be electors, and was adopted by a majority of those voting. An attempt to put a government in operation under this constitution was resisted by the authorities acting under the charter, and the leader in it was arrested, tried, and punished as a criminal. See Luther v. Borden, 7 How. 1. The antirepublican restrictions upon the right of suffrage were supposed by some to warrant the interference of the government of the United States, but this view was not accepted by any department of the government. See Mr. Webster's argument in this case, 6 Works, 617. And see North American Review for April, 1844, p. 371. Mr. Calhoun, in speaking of this guaranty with particular reference to the Rhode Island case, says that "the federal gov ernment, in determining whether the government of a State be or be not republican within the meaning of the Constitu tion, has no right whatever in any case to look beyond its admission into the Union. From this fundamental restriction, another, deduced from it, necessarily follows, of no little importance, that no change in its government, after its admission, can make it other than republican which does not essentially alter its form, or make it different in some essential particular from those of the other States at the time of their adoption. In other words, the forms of the governments of the several States composing the Union, as they stood at the time of their admission, are the proper standard by which to determine whether any afterchange in any of them makes its form of government other than republican." 6 Works, 219. The view of Mr. Reverdy Johnson was § 1814. The want of a provision of this nature was felt as a capital defect in the plan of the confederation, as it might, in its rule, as I think, consistent with what must have been the intention of the convention and of the people, and that is this: that every government is republican in point of form which corresponds with the governments in existence when the Constitution was adopted. All rights secured by positive constitutional prohibitions, that were secured or prohibited in the several State constitutions of the States whose representatives framed the Constitution, and whose people adopted the Constitution, are perfectly consistent with our idea and the people's idea of what constitutes a republican form of government. There is no other rule by which you can construe the clause that will not place every State in the power of the United States, exercising that power through the Congress of the United States which from time to time that body may think actually or professedly will conduce to the interest of the people of each State, and give them what they consider a government republican in point of form." expressed in the debate in the Senate of the United States, December 14, 1867. "There must be some mode by which you are to ascertain whether any government is republican in-point of form, for this very obvious consideration: the United States are to guarantee to every State a republican form of government. My friend from Massachusetts says, and my friend who offers this amendment says, that to exclude the black man from voting shows that the government is not republican in point of form. Why? Was he not excluded when the Constitution was adopted in every State in the Union, or almost every State in the Union? Yes. Did not the States that adopted it do it under the impression that they were States repub lican in point of form? Why certainly, unless they intended to break up all the States. That we know they did not intend; and not intending that, can it be supposed that they intended by this clause to place it in the hands of Congress to decide from time to time, as passions might be excited, party spirit prevail, the exigencies of party success demand, to interfere with the State governments by bringing into the enjoyment of the elective franchise those whom the States had excluded? Not only that; if the proposition is true, it goes a step further than that; if possible, infinitely further. Does it give to the United States the authority to interfere with any of the existing rights belonging to the States at the time they adopted the Constitution? If it did, then everything was thrown afloat; the United States, then, by its Congress, is to become a great convention, not only to deliberate for the interests and safety of the people of the United States, but for what they may from time to time believe to be the true interest and safety of the people of each State in the management of its own domestic coucerns. "There is a rule, and it is the only for partisan ends, determine and declare This view, so forcibly presented, is that which was practically accepted and acted upon up to the time when it became necessary to reorganize and reconstruct State governments in the States which went into rebellion in 1861. By some leading men in Congress it was then contended that a government ought not to be regarded as republican in form which permitted slavery, or which excluded a portion of its citizens from participation in the government because of the color of the skin. The exigencies of the times made this doctrine acceptable. The reorganizing States were required to present constitutions forbidding slavery and establishing impartial suffrage. In the course of reconstruction, however, the question was warmly discussed whether, if the political departments of the government should erroneously, arbitrarily, and, consequences, endanger, if not overthrow, the Union. Without a guaranty, the assistance to be derived from the national gov that a particular State government was not republican in form, and therefore should not be recognized, such State or its citizens could have any appeal to the judicial tribunals. It was not doubted that, if the case was one of a newlyorganized State applying for admission to the Union, the decision of Congress upon its admission, however erroneous, unjust, or arbitrary, would be one the conclusiveness of which would not be open to discussion. Congress having full power to admit or reject new States, the insufficiency of the reasons which may have governed its action cannot possibly affect its validity. But in other cases also it must be conceded that a State aggrieved by an unjust decision is equally without legal remedy. The courts cannot aid it, for upon political questions they must accept and follow the conclusions of the political department. Luther v. Borden, 7 How. 42; Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 649. In such a case, the only redress possible is through an appeal to the people. Such is the conclusion of the cases above cited. The recent case of Louisiana demonstrates that there may be greater wrongs than even the wrongful refusal of Congress to recognize the legitimate government of a State, and yet no speedy and effectual remedy be attainable. Such action on the part of Congress would at least be that of a proper authority, and would imply deliberation, and be supported by a presumption of due regard for the public good and for the supremacy of the law. But in the case of Louisiana in 1873, an inferior federal judge, without a shadow of authority, and consequently in defiance of law, and for that reason supported by no presumption of correct motives, and with scarcely a pretence of observing even the usual forms, by the process of his court, aided by a military force, installed in power a State government which he sided with as against rival claimants, and VOL. II. 38 in consequence of a pressure of business in Congress precluding prompt attention to the case by that body, has been enabled to sustain this government in power until the present time. Mr. Justice Story has with reason predicted that "if a despotic or monarchical government were established in one State it would bring on the ruin of the whole republic." What gov ernment can be more despotic than one elected by an injunction, and continued in power by a military force under the order of a judge who, having no jurisdiction, is restrained by no law but his own arbitrary will? For the facts of this unparalleled wrong we refer to reports made by the judiciary committee of the United States Senate in February, 1873. The case requires no further comment than it there receives. The dullest mind cannot fail to see that the facility with which the wrong is committed, and the possible immediate advantages which individuals may derive therefrom, present constant temptations to its repetition, and if suffered to pass once unrebuked, a precedent will be tacitly assented to which cannot fail to threaten constant danger to our liberties, especially at those very periods of high political excitement when prudence, caution, and the strictest regard for the Constitution and the laws are most important. What party or what political leader can at such times be expected to pay scrupulous deference to the laws, if a judge may ignore them with impunity? It was thought the climax of wrong had been reached when a local judge in one of the States could seize upon the property of individuals and corporations through his injunctions and mandates, and plunder them through receivers; but he at least was not acting wholly without juris. diction; and if he seized property, he did not venture to go so far as to make the liberties of the people the subject of a receivership. C. ernment, in repelling domestic dangers which might threaten the existence of the State constitutions, could not be demanded as a right from the national government. Usurpation might raise its standard, and trample upon the liberties of the people, while the national government could legally do nothing more than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law; while no succor could be constitutionally afforded by the Union to the friends and supporters of the government.1 But this is not all. The destruction of the national government itself, or of neighboring States, might result from a successful rebellion in a single State. Who can determine what would have been the issue, if the insurrection in Massachusetts in 1787 had been successful, and the malcontents had been headed by a Cæsar or a Cromwell? If a despotic or monarchical government were established in one State, it would bring on the ruin of the whole republic. Montesquieu has acutely remarked, that confederated governments should be formed only between States whose form of government is not only similar, but also republican.3 § 1815. The Federalist has spoken with so much force and propriety upon this subject, that it supersedes all further reasoning. "In a confederacy," says that work, "founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other, and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained. § 1816. "But a right implies a remedy; and where else could the remedy be deposited than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort than those of a kindred nature. As the confederate republic of Germany,' says Montesquieu, consists of free cities and petty states, 1 The Federalist, No. 21. 2 Ibid. 8 Montesq. B. 9, ch. 1, 2; 1 Tuck. Black. Comm. App. 366, 367. This clause of guaranty was unanimously adopted in the convention. Journ. of Convention, 113, 189. 4 The Federalist, No. 21. |