174. Guarantee of Republican Government in the States.

The continuing obligation of the United States with reference to the existence of the states is twofold: The constitution provides (Art. IV, § 4), for (1) a republican form of government in each state, and (2) the protection of such government against being overthrown by invasion of a foreign power or by domestic violence. It is evidently assumed in the guarantee that the forms of government existing in the different states at the time of the adoption of the federal constitution were republican. The characteristic feature of such a form of government is that those exercising authority do so in a representative capacity; it cannot be a monarchy on the one hand nor a pure democracy on the other. No doubt a republican form of government, as described in the federal constitution, involves the exercise of the powers of government by different departments, and a selection of the members of, at least, the lower branch of the legislature by popular vote, but by popular vote it is not necessarily meant that all the adults or even all the adult males shall be entitled to exercise the electoral franchise, but only that officers be in some form selected by a body of electors substantially representing the people. As will be pointed out in the chapter relating to citizenship and political privileges (see below, § 200) the right to vote is to be regarded only as a privilege conferred in accordance with the public interest.

While the constitution provides that the United States “shall " guarantee a republican form of government to the states, it is to be understood that the exercise of this power is discretionary. There has been, as yet, but little discussion as to the nature and extent of this power, for there has been little occasion for its exercise. It may be suggested, however, that republican government might cease to exist in a state (1) through invasion by a foreign power and an attempt to set up some other form of government by its authority; (2) or by a revolutionary attempt of the people themselves to overthrow the existing republican form of government and to substitute some other form in its place; (3) or by an attempt to destroy repub

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lican government by amendment of state constitutions. In any of these instances the new government would be illegal and unauthorized, and a republican form of government having ceased to exist there would be no state government and Congress would have occasion to provide for the establishment of such a government (see below, § 181).

175. Guarantee against Invasion or Domestic Violence.

The provision of the federal constitution last above referred to, so far as it relates to the protection of the state governments, involves protection, not only against invasion, but also against domestic violence. As to invasion, no action of the state invoking federal protection is necessary; an invasion of a state is also an invasion of the United States, and would be a proper ground for the exercise of the federal executive power, involving the use of the military and naval forces (see above, § 130). In case of domestic violence against a state government the federal government is authorized to act only on application of the state legislature, if in session, or the executive when the legislature cannot be convened. It is provided by statute that this application be made to the president and that he may call out the militia of other states if a military force is necessary, and it is evidently implied that he may make use of any of the military and naval forces of the United States in the exercise of his discretion (see above, § 131).

The express denial to the states of the power to grant titles of nobility (Const. Art. I, § 10, T1) should properly be regarded as a provision for the preservation of a republican form of government, and the similar restriction on the power of the United States (Const. Art. I, § 9, ¶ 8) was undoubtedly intended to have the same effect in the preservation of a republican form for the federal government. These provisions are self-executing, and any attempted grant of such titles by the federal or a state government would be void because unconstitutional.

176. Reconstruction of States.

There has been no occasion for the active exercise by Congress of the power to guarantee a republican form of government in any state save in those cases where the existing state governments were overthrown as the result of the rebellion of the Southern states in 1861 and the attempt by the people of those states to form a new federal government under the name of the Confederate States of America. This attempt was so far successful that in eleven Southern states the regularly constituted state governments ceased to exist and revolutionary governments were substituted. These new state governments were de facto governments and were republican in form; but they were not the state governments recognized by the federal constitution, for they were not organized to exercise powers which states might have under that constitution, but were, on the other hand, organized to exercise power in hostility to the government therein provided for.

The people of the Southern states in rebellion continued to be citizens of the United States and subject to the constitution and laws of the United States and the authority provided under such constitution and laws; but ceasing for the time being to exercise the political functions provided for by the federal constitution they were without "state" governments in the sense of the federal constitution. Therefore, as far as the federal government was concerned, those states at the end of the war were still without state governments. It thereupon became the duty of the federal government, as soon as peace and tranquillity had been so far restored in those states as to make civil government possible, to provide for the establishment therein of regular state governments; and this was done under the provisions of the socalled reconstruction acts (1867).

It is unnecessary now to discuss at length the provisions of these acts or to consider the different questions which arose under them; it is enough to say that state governments of a republican form were re-established. During the interval between the overthrow of the existing but irregular state govern

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ments and the recognition of new state governments under the reconstruction acts, the states whose people were in rebellion did not cease to be states in the Union, but they were for the time being states without any regular and lawful governments, that is, without any governments which the federal government could recognize.

CHAPTER XXXI.

ADMISSION OF STATES.

177. References.

J. Story, Constitution, §§ 1314-1321; J. A. Jameson, Constitutional Conventions, ch. vii; J. R. Tucker, Constitution, §§ 295–301; T. M. Cooley, Constitutional Law, ch. ix; H. C. Black, Constitutional Law (2d ed.), 233235; Boyd v. Thayer (1892, 143 U. S. 135; McClain's Cases, 423); Texas v. White (1868, 7 Wallace, 700; McClain's Cases, 838; Thayer's Cases, 302); Sands v. Manistee River Improvement Co. (1887, 123 U. S. 288; McClain's Cases, 842).

178. Ratification by Original States.

As the federal constitution was to go into operation when ratified by conventions in nine of the original thirteen states (Const. Art. VII), it evidently was contemplated that as the federal government was created by such ratification, any of the original states which had not thus ratified at that time should later become members of the union by similar ratification. It was not intended that such states should be excluded from the union nor that the union should be forced upon them, but only that they should not be members of it until such ratification had taken place. Congress was not called upon to take any steps with reference to admission of such states and although ratification was postponed in two states, they soon became members by their voluntary action.

179. Admission of New States by Congress.

But at the time of the formation of the federal government, there were large areas of territory within its jurisdiction derived by cessions from the various states and from Great Britain under the treaty of peace ending the war of the Revolution, which were not included within the limits of any state, and provision was made in the constitution for the admission of