United States, the act may be an offense against the authority of a State, as well as that of the United States.'

991

1 Cf. on this whole subject the essay by J. I. Chamberlain, "The Position of the Federal Government of the United States in Regard to Crimes Committed against the Subjects of a Foreign Nation Within the States;" also Reports of American Bar Association for 1891, 1892, 1893; Congressional Record, 52d Congress, 1st Session, 1892; Annual Message of President, December, 1901.

CHAPTER VI

FEDERAL CONTROL OF STATE GOVERNMENTS

IN what has gone before, the sovereignty of the United States as opposed to and inconsistent with the continued sovereignty of its individual commonwealth members has been sufficiently declared. Whatever doubt there may have been as to this before the Civil War, the result of that gigantic struggle left no room for subsequent disagreement, and the unequivocal assertions of the federal courts simply registered conclusions that no one thereafter could rationally question. Starting, then, from this fundamental fact that, looking at the matter from a purely legal standpoint, the individual the individual Commonwealths constitute simply governmental or administrative districts of the United States, we shall now proceed to consider the degree of autonomy secured them by the federal Constitution. This subject we may conveniently divide into two parts. First, we may examine the degree of control that the Federal Government may constitutionally exercise over the form of governments that the several States may establish for themselves; and, secondly, the extent to which the General Government may supervise or control the exercise by the States of those powers that are reserved to them.

First, then, as to the control that may be constitutionally exercised by the United States over the forms of governments of its constituent units.

Speaking generally it may be said that, providing its government be republican in form, each State of the Union may establish such governmental organs as it sees fit, and apportion among them its executive, legislative, and judicial powers according to its own judgment as to what is expedient and proper.

The federal Constitution provides that "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 legislatures, or of the executive (when the legislature cannot be convened) against domestic violence." (Art. IV, sec. 4.)

In form, the first clause of this section would appear to be for the benefit of the States and to impose a duty upon the Federal Government, and such undoubtedly would be its effect should a foreign power attempt to impose a government of any sort whatever upon the people of one of the States against their will; or should a domestic revolution result in the establishment in power of a government not sanctioned by law or not freely agreed to by the electorate. In fact, however, as we have already seen, and as will presently be more particularly spoken of, this clause was so interpreted during reconstruction times as to give to the Federal Government an almost unlimited power of control for several years of the domestic affairs of those States that had been in rebellion against its authority.

It will be noticed that the Constitution does not itself define the term "republican form of government." It has, however, always been an accepted rule of construction that the technical and special terms used in the Constitution are to be given those meanings which they had at the time that instrument was framed. This is but reasonable, for, in default of anything to the contrary, those who drafted the Constitution are to be presumed to have intended the words which they used should have the meaning they knew them to have. For a definition, then, of "republican government" we must discover what such a political form was considered to be in 1787. Certainly we may say that the governments of the thirteen original States as they existed at the time the Constitution was drafted must have been considered as illustrating the republican type. Furthermore, the constitutions of all those States which have been admitted to the Union since 1787 must be regarded as having been impliedly declared republican by Congress at the time of the giving of its assent to their entrance into the Union. The late Judge Cooley, in his "Principles of Constitutional Law,"1 has perhaps defined the term as satisfactorily as any one. "By a republican form of government," he says, "is understood a government by representatives chosen by the people; and it contrasts on the one side with a democracy, in which the people or community as an organized whole wield the sovereign powers of government, and, on the other side, with the rule of one man as King, Emperor, Czar, or Sultan, or with that

of one class of men, as an aristocracy." 1 "In strictness," Judge Cooley goes on to say, "a republican government is by no means inconsistent with monarchical forms, for a King may be merely an hereditary or elective executive while the powers of legislation are left exclusively to a representative body freely chosen by the people. It is to be observed, however, that it is a republican form of government that is to be guaranteed; and in the light of the undoubted fact that by the Revolution it was expected and intended to throw off monarchical and aristocratic forms, there can be no question but that by a republican form of government was intended a government in which not only would the people's representatives make the laws, and their agents administer them, but the people would also, directly or indirectly, choose the executive. But it would by no means follow that the whole body of people, or even the whole body of adult and competent persons, would be admitted to political privileges; and in any republican

1 In some of the courts of the States direct legislation laws (referendum) have been held unconstitutional on the ground that their effect is to establish a democratic in the place of republican, representative government. Thus, for example, in Rice v. Foster, 4 Harr., 479, the Court of Delaware declared: "Although the people have the power, in conformity with its provisions, to alter the Constitution, under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy or any other than a republican form of government;" and the giving of a direct legislative power to the electorate, the court went on to hold, was, in effect, to establish a democracy. In Maynard v. Board, 84 Mich., 228, the court suggested that "cumulative" voting is inconsistent with a republican form of government.