fere, 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.10

"After the President has acted, and has called out the militia," continued the court, "is a circuit court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President is endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It

10" Under this article of the Constitution," said the court, speaking through Taney, C. J., "it rests with Congress to decide what government is the established one in the State. For as the United States guarantees 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 abovementioned 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 (Feb. 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 act of Congress."

cannot, when peace is restored, punish as offenses and crimes the acts which it before recognized, and was bound to recognize, as lawful." As to the point that a discretionary power thus placed in the hands of the President might be abused, the court said: "All power may be abused if placed in unworthy hands. But it would be difficult to point out any other hands in which this power would be more safe, and at the same time equally effectual.

. . At all events, it is conferred upon him by the Constitution. and laws of the United States, and must therefore be respected, and enforced in its judicial tribunals.”

As regards the point that had been raised that by the declaration of martial law and the use of military force, the old government of Rhode Island had ceased to be a republican one, the court said: "Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities. And, unquestionably, a State may use its military authority to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government."11

§ 80. The Reconstruction of Southern States after the Civil War. Acting under the authority assumed to be given it by the guaranty clause, Congress, at the conclusion of the Civil War, assumed an almost complete control over the 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 difficult to justify. Practical exigencies may have necessitated

11 For a fuller discussion of martial law, and its limitations, see post, Chapter LXII.

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 for 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 of course be bound to pursue the authority. But the authority extends no further than a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. 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; and these governments it termed republican in form, though they were imposed upon the States against the will of the great bulk of their citizens, and were maintained in existence by the support that the federal bayonet was able to give them. Furthermore, 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.

In an earlier chapter it has been pointed out that in the famous case of Texas v. White12 the Supreme Court construed the "guaranty" clause of the United States Constitution to authorize Congress to establish and maintain governments in those States which had attempted secession from the Union. It will be remembered, however, that in that case the court did not feel itself called upon to pass upon the constitutionality of any of the particular provisions of the Reconstruction Acts which were enacted by Congress in the exercise of that power, but was content with satisfying itself that the government which had been established and had been in actual operation, had been recognized by Congress, and was, as such, competent to bring suit in behalf of the State of Texas, which, it was declared, had never been, despite its ordinance of secession, out of the Union.13

In White v. Hart1* an attempt was made to have the Supreme Court hold void certain provisions of the reconstruction Constitution of Georgia on the ground that the Constitution had been adopted under the dictation and coercion of Congress, and was not thus, in reality, the act of the State. The Supreme Court replied: "Congress authorized the State to frame a new Constitu

12 7 Wall. 700; 19 L. ed. 227.

13 See ante, p. 85.

14 13 Wall. 646; 20 L. ed. 685.

tion, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department." In short, the court held that whether or not Congress was justified in requiring of the State that, as a condition to her again enjoying representation in Congress, she should adopt a Constitution containing certain provisions, the State had yielded and adopted a Constitution as required. It was therefore her act, and its provisions were valid as such. IIad she continued to refuse to accede to the conditions imposed by Congress, it might ultimately have been necessary to decide whether those conditions were constitutionally requirable. But having yielded to them, the court very properly held that it could not examine into the motives or circumstances which led the State to do so.

§ 81. Restricted Suffrage Compatible with Republic Form of Government.

In Minor v. Happersett15 the point was raised that a state government is not republican in form in which adult women are not permitted to vote. As to this the court said: "The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially pro15 21 Wall. 162; 22 L. ed. 627.