ment has within itself the means of deciding such contests. In some cases, however, it becomes indirectly obligatory upon the General Government to decide the matter. This occurs when the action of state organs, the standing of which is in dispute, requires recognition or enforcement by the federal authorities. Thus, for instance, should each of two contesting state legislatures select and send Senators to Congress, it would be necessary for the United States Senate to decide which of the electing bodies was endowed with authority to act on that behalf for the State.

The case of Luther v. Borden (7 How., 1), decided by the Supreme Court in 1845, arose out of the following facts. Borden, acting under the authority of the old government of Rhode Island, had broken into the house of Luther who was at the time engaged in attempting to establish the government provided for by the Constitution that had been adopted in the popular, extra-constitutional manner spoken of above. Upon being sued in trespass by Luther, Borden justified himself by the plea that he was acting under the authority of the legal government of the State. Luther, upon his side, denied the de jure character of that government, and, therefore, its legal competence to empower Borden to exercise the authority he did. Thus the question as to which of the two governments was at that time the legal government of the State seemed squarely presented to the Court. That tribunal, however, did not feel itself obliged to pass upon the point, holding that the power to determine such a matter had been given by the Constitution to Congress, and by that body had been handed over, to the

extent at least of determining when the Federal Government should interfere, to the President. In the case at bar the President had recognized the legality of the old government and the propriety of this decision the Court declared it could not consider.1

When dealing with the subject of the readmission of the Southern States to federal privileges, we adverted to the fact that, acting under the authority assumed to be given it by the guaranty clause, Congress assumed an almost complete control over the

1"Under this article of the Constitution," said the Court, "it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can be determined whether it is republican or not. And when the Senators and Representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. . . . So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. But Congress thought otherwise. By this act (of February 28, 1795) the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress."

...

reconstruction of governments in those States. There can be no question, however, but that in doing so an interpretation was given to that clause which it is very difficult, upon strict principles of construction, to justify. Practical exigencies may have necessitated the federal authority that was exercised, but that violence was done to the meaning of this clause must be admitted. A fair interpretation of this clause would have given to the Federal Government at the most nothing more than the right to assist the citizens of the several States in establishing and maintaining governments republican in form and loyal to the Union. When this clause was discussed in the Constitutional Convention of 1787 it was explained by one member that its object was "merely to secure the States against dangerous commotions, insurrections, and rebellions;" and Madison, writing in the "Federalist," said: "It may possibly be asked what need there could be of such a precaution, and whether it may not become a pretext for alteration in the state governments without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the General Government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the General Government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority. But

the authority extends no further than a guaranty of a republican form of government, which supposes a preëxisting government of the form which is to be guaranteed.1 As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions; a restriction, which, it is presumed, will hardly be considered as a grievance."

Instead, however, of guaranteeing existing governments in the Southern States, or of assisting their citizens in establishing republican governments, the Federal Government, in pursuance of the various Reconstruction Acts passed by Congress, went on itself to assume the practical control of the establishment of new governments which they imposed upon the States against the will of the great bulk of their citiFurthermore, Congress even then refused to admit the States to a full enjoyment of constitutional rights until they had amended their constitutions in certain specific ways, and ratified the Fourteenth and Fifteenth Amendments to the federal Constitution. In so doing, not only was violence done to the guaranty clause, but the States in question were deprived of that equality with the other States of the Union to which they were constitutionally entitled.

zens.

1 Italics our own.

CHAPTER VII

FEDERAL AND STATE AUTONOMY

THE general principle governing the exercise of governmental powers in the American State is that the powers of the Federal Government and those of the individual States shall be kept as distinct and independent as possible. Thus, as differing from almost all, if not all, of the other federal States of the world, there is provided in the American State a complete governmental machinery fully equipped with its own officials for the exercise of the powers of the Central Government, and, distinct therefrom, an equally complete governmental machinery in each of the constituent Commonwealths for the performance of their several functions.

This separation of the federal and state authorities and magistracies is maintained by the enforcement of the following rules:

First, no individual Commonwealth is permitted in any way to interfere with the operation of a federal governmental organ when operating within its constitutional province; nor, on the other hand, may the United States interfere in any way with the exercise by a State of any one of its constitutional powers.