Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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INSURRECTION

II.191.1

INSURRECTION (IN U. S. HISTORY.) I. The constitution (Art. I., § 8, ¶¶ 11-16,) has given power to congress to declare and maintain war, and to provide for organizing, arming and calling forth the militia to execute the laws, suppress insurrections and repel invasions. The power has been exercised, 1, by the passage of the several general acts hereafter specified, and 2, by the suppression, through the president and the federal forces under his command, of two insurrections. (See WHISKY INSURRECTION, REBELLION.)

II.191.2

—The act of May 2, 1792, authorized the employment of militia by the president to suppress insurrections, upon notification by a federal associate justice or district judge that the execution of the laws was impeded by combinations too powerful to be suppressed by the ordinary course of judicial proceedings. The act of Feb. 28, 1795, amplified the foregoing act by authorizing the president, on application of the legislature of a state, or of the governor when the legislature could not be convened, to call forth the militia of other states to suppress an insurrection against the government of the state. The act of March 3, 1807, provides that, "in all cases of insurrection or obstruction of the laws, either of the United States or of any individual state or territory, where it is lawful for the president of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States as shall be judged necessary, having first observed all the prerequisites of the law in that respect." It is important, therefore, to remember that the "prerequisites" under this act were, 1, the notification of an associate justice or district judge that the execution of the laws is obstructed, or 2, the application of a legislature or governor. No further provisions against insurrection were made until 1861.

II.191.3

—The breaking out of the rebellion brought out a state of affairs unprovided for by law. None of the governors or legislatures of seceding states were at all likely to call for federal interposition; the district judges in those states, as well as one of the associate justices, had resigned; and no associate justice appears to have notified the president that the laws were obstructed—at least there is no assertion of any such notification in the president's proclamation of April 15, 1861, calling for 75,000 militia. It is apparent, then, that the "prerequisites" for calling forth the militia, or employing the regular forces to suppress insurrection, had not been observed; and that the proclamation, though the war department's notification to the state governors based it on the act of Feb. 28, 1795, could not be defended by referring it to that or any of the other acts above referred to.

II.191.4

—The proclamation, however, and the other steps to suppress the insurrection which were taken before the meeting of congress in July, have a different ground of justification in those clauses of the constitution which make the president commander-in-chief, and direct him to "take care that the laws be faithfully executed." His powers and duties under these clauses can hardly be more clearly stated than in the opinion of the supreme court in the case of The Brilliant cited below. "If a war be made by invasion of a foreign nation, the president is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or states organized in rebellion, it is none the less a war, although the declaration of it be unilateral. * * * The president was bound to meet it in the shape in which it presented itself, without waiting for congress to baptize it with a name. * * * Whether the president, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him." (See WAR POWERS.)

II.191.5

—The unusual circumstances of the case, and the criticisms of some of the president's measures (see HABEAS CORPUS), induced the passage of the act of Aug. 6, 1861, whose third section approved, legalized and made valid all the acts, proclamations and orders of the president after March 4, 1861, "to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the congress of the United States." This validation seems hardly more necessary in this case than in that of a neutrality proclamation; it was given more effectually and more properly by the act of July 13, 1861, restricting intercourse with the insurrectionary states, the act of July 29, 1861, authorizing the employment of the militia and land and naval forces to suppress insurrection whenever it should become impracticable, in the judgment of the president, to enforce the laws by ordinary process, and the various acts appropriating men and money for the support of the president in suppressing the rebellion. (See REBELLION.) The dividing line between the functions of the various departments of the government in making war and in suppressing an insurrection is not a bold one, and yet it is not difficult to trace it, except where it is obscured by party passion.

II.191.6

—The power given to the president by the enforcement act of April 20, 1871, to suspend the privilege of the writ of habeas corpus, and to employ the militia in suppressing any combinations which, in the judgment of the president, should prevent the execution of the laws, and the provision of the same act that such combinations should "be deemed a rebellion against the government of the United States," were more objectionable on the question of expediency than on that of constitutionality; the strongest arguments against them were drawn from the bad character and untrustworthiness of many of the executive agents in the south, on whose report the provisions of the act were to be put into operation. (See generally, EXECUTIVE, CONGRESS, WAR POWERS, RECONSTRUCTION, CIVIL RIGHTS BILL.)

II.191.7

—II. DOMESTIC INSURRECTION. The constitution (Art. IV., § 4) makes it the duty of "the United States" to guarantee a republican form of government to every state, and to protect each state against invasion and against domestic violence. No evidence of invasion is required; the application of the state legislature, or of the governor when the legislature can not be convened, is to be taken as evidence of domestic violence. As the duty is imposed upon "the United States," it is imposed not upon any one department alone, but upon all—upon the federal courts in their decisions, upon congress in its legislation, and upon the president in his execution of the laws.

II.191.8

—It would be easy to name many forms and features of government which are not republican; it is not at all easy to define a republican form of government as intended by the constitution. The essence of it seems to be in the untrammeled existence of a legislative department chosen by popular vote. So long as this feature is present, the United States do not interfere to correct abuses, or what seem to be abuses, which the people of the state do not care to correct. To do so would be to keep the people of the state in a condition of pupilage far more emasculating and inconsistent with the idea of a republican government than the abuses from which they had been rescued. If the people of a state, as represented in their legislative assemblies or constitutional conventions, choose to limit the suffrage unreasonably, or to disfranchise for petty offenses, or to entrust the count of their votes to irresponsible boards, these are evils which involve their own punishment and ultimate correction. (See SUFFRAGE, RETURNING BOARDS.) So long as a state remains peacefully in the Union, and its state constitution or legislature does not assume to exercise powers prohibited by the constitution of the United States, to establish a state church, or to grant hereditary tenures of office, it is difficult to conceive of any alteration in their present forms of government which would be considered unrepublican or demand the active interference of the federal government.

II.191.9

—When a state, by the action or acquiescence of a majority of its people, undertakes to sever its relations to the Union, the case is very different. As the controlling theory of the American system of government is that a state has no existence apart from the Union, the action of the people of the state is taken as a voluntary abrogation of their state government; it then becomes the duty of the federal government, in its various departments, to fulfill the guarantee of the constitution, and in reconstructing the state governments the law-making power may rightfully reject any features which seem to it unrepublican. If there is any hardship in this, the blame must fall upon those who made the reconstruction necessary. (See RECONSTRUCTION.)

II.191.10

—It is still more difficult to define "domestic violence." It is easy to see that such outbreaks as Shays' rebellion, which occasioned the insertion of this section (see CONFEDERATION, ARTICLES OF), or the railroad riots of 1877, are cases of domestic violence, and that such a struggle between two opposing parties for the possession of the state government as that which occurred in Maine, in 1879-80, is not; but it is difficult always to draw the line exactly between the two classes of cases. The general rule may be laid down that the federal government will not recognize the subversion of a form of state government, which it has once recognized as republican, until the subversion is accomplished according to the rules of the established form, and that it will support the established form of government against all irregular attacks upon its existence. But when the validity of the form of government is undisputed, and the conflict is between opposing parties for the control of it, the federal government will not interfere unless actual violence occurs, and then only to prevent anarchy and maintain the status quo until the people of the state can speak and decide. The rule is open to the obvious objection that evil men, in control of the machinery of a state government, might easily provoke violence by efforts to retain it after a defeat at the polls, or, when out of possession, might similarly provoke violence by illegal efforts to obtain it: but this is the common and underlying peril to all republican governments, and, when a state is unable to surmount it, it is unfit for a republican government. It would be unfair to quote precedents for or against the rule from the revolutionary period, hereafter referred to, which immediately succeeded reconstruction; it is sufficient to say that no state now appears to be thus unfit for republican government, and that the future prospects are for improvement, not for deterioration in this respect.

II.191.11

—The "domestic violence" clause was practically a dead letter until after the suppression of the rebellion, and is only lightly touched upon in the treaties upon constitutional law published before 1870. The disturbances in Pennsylvania in 1794 were not aimed at the state government but at the government of the United States; they were therefore suppressed by the president's direct action, on the certificate of the federal judge, and without any call from the state authorities. (See WHISKY INSURRECTION.) In 1838-42 two appeals were made by governors, one from Pennsylvania, and one from Rhode Island. (See BUCKSHOT WAR, DORR REBELLION.) In the former case federal interference was refused; in the latter case it was held in readiness, though it proved unnecessary, and the power to grant it was maintained by all the departments of the government. The two cases deserve study as fair examples of the propriety and impropriety of federal interference. Throughout the war the legislatures and governors of states in sympathy with the federal government had no occasion, and those opposed to the federal government had no desire to call for federal interference. Throughout the period of reconstruction, 1867-70, there were no recognized state legislatures or governors in the unreconstructed disturbed states; but military assistance was furnished from Washington to federal marshals, whenever necessary, under the provisions of the reconstruction acts, the civil rights act, and the freedmen's bureau act. (See titles of acts named.)

II.191.12

—From the completion of reconstruction until 1877 federal interference to sustain the reconstructed governments was in constant demand. In almost all the states a regular sequence of events took place: 1, the formation of a state government under which negro suffrage was permitted and former rebels were, in some of the states, disfranchised (see SUFFRAGE); 2, the election of a republican governor and legislature; 3, disorders in the election of the legislature for the purpose of securing a majority in that body for the impeachment and removal of the governor; and, 4, an appear by the governor or legislature for federal troops to keep the peace. In Florida and Georgia the final step was not taken, as the republican administration was ousted peaceably. In many of the states there were variations in the process, usually from the utilization of the state courts in the political struggle; but the general course of events was as above given.

II.191.13

—The process began in the first state reconstructed, Tennessee. From July, 1866, until December, 1867, frequent applications were made to Gen. Thomas by the governor for troops to keep order at elections and elsewhere, but these were refused, except as posses in aid of the civil authorities, since no insurrection was alleged. In 1869 the legislature passed under control of the democrats, and in February, 1870, the governor applied to the president for troops, on the ground that the legislature was unwilling to suppress violence. This, however, was designed rather to influence congress to again undertake the reconstruction of the state, and when congress refused to interfere, the application for troops was not renewed.

II.191.14

—In July, 1870, Gov. Holden, of North Carolina asked for and received troops to suppress insurrection in two counties of his state, and in November of the same year Gov. Smith, of Alabama, informally obtained a platoon of federal soldiers to aid him in resisting the inauguration of the opposing candidate. In January, 1874, Gov. Davis, of Texas, applied for troops to aid him in preventing the meeting of a legislature which, he asserted, had been illegally elected, but the request was refused. April 19, 20, 1874, application for federal troops was made by both the rival claimants of the office of governor of Arkansas, but this was refused until the legislature met and decided in favor of Baxter. (See ARKANSAS.) In November, 1874, V. V. Smith, lieutenant governor of Arkansas, claiming to be governor because of Gov. Baxter's submission to his supersedure by the new constitution, called upon the president for troops, but as he fled from the state immediately afterward, his request was ignored. Sept. 8, 1875, Gov. Ames, of Mississippi, called for troops, but was advised to call the legislature together and defend his state and constituents.

II.191.15

—The two states from which federal interposition was oftenest called for during this period were Louisiana and South Carolina. The disturbances seem to have been caused mainly, in the former state, by the extraordinary, rigid and inquisitorial restrictions upon the right of suffrage in the original reconstructed constitution of 1868, and, in the latter state, by the preponderance of the negroes in the numerical vote and of the whites in the tax paying class. (See the states named) Louisiana really led in direct applications to the president, the first having been made in July, 1868, and the step was then so unusual and so little understood that the legislature at first mistakenly addressed the application to the general of the army at Washington, ignoring the president; and Gen. Grant, in sending instructions to the commanding officer of the Louisiana department, felt obliged to detail at length the constitutional provisions and acts of congress covering the case. In 1872 the republican party of the state split, and the Packard-Kellogg faction, securing the support of the most influential federal office-holders in the state, secured with it the support of the federal government. From that time appeals for federal interposition became chronic, and until its final downfall the Kellogg government never claimed to be able to control the state without the support of federal troops. In September, 1874, it was suddenly and entirely overthrown by an armed force of its opponents, and the rival McEnery government took its place, but on the 15th of that month, by orders from Washington, the latter was expelled by federal troops and the Kellogg government was restored. Jan. 4, 1875, after the democrats had got control of the legislature, apparently by sharp practice, Gen. de Trobriand entered the hall with a force of federal troops, removed certain members whom the democratic majority had seated, and restored control of the body to the Kellogg party. Both houses of congress, by party votes, approved the president's action in the case. Finally, March 3, 1877, the retiring president notified the Kellogg governor, Packard, that "public opinion would no longer support him in the maintenance of the state government in Louisiana by the use of the military," and, as the incoming administration concurred in this belief, the Kellogg Packard government disappeared from Louisiana politics.

II.191.16

—In February, 1871, the legislature of South Carolina called for and received federal troops to suppress insurrection in two counties of that state, and in October and November, under the enforcement act of April 20, 1871, the president by proclamation suspended the privilege of the writ of habeas corpus in nine counties until disturbances should cease. In October, 1876, Gov. Chamberlain renewed the application for federal troops, which thereafter maintained his state government until April, 1877. The result of the election for governor in November, 1876, was disputed, and in the lower house of the legislature the parties were so evenly divided that the control of the body depended upon the result in two counties. In these counties the democratic members claimed to be elected, but the returning board refused to give them certificates on the ground of violence and fraud in the election. The governor surrounded the state house with federal troops, who prevented the admission of the democratic members whose election was disputed. Thereupon the whole body of democratic members refused to enter, and two state governments appeared. One, the republican, had an undisputed senate and a disputed governor and house of representatives, and was supported entirely by federal troops, the other, the democratic, had a minority in the senate and a disputed governor and house of representatives, and was supported by the judiciary and tax paying classes of the state. The withdrawal of the federal troops, as in the case of Louisiana above, resulted in a similar downfall of the Chamberlain (republican) government, April 11, 1877.

II.191.17

—In all the states, except in the southern states during the abnormal period above referred to, there has always been a great and jealous unwillingness to call for federal assistance except in a case of extreme necessity. Even in the disorder following the great Chicago fire of October, 1871, the governor of the state took strong exception to the hasty action of the mayor of the city in calling in the aid of federal troops to maintain order instead of applying for state militia. This systematic policy has had the good result of maintaining the efficiency and importance of the militia as the usual state police, and of giving extraordinary effect to the occasional appearances of federal troops in aid of the state. The disorders attendant upon the great railroad strikes of 1877 were suppressed mainly by unaided state power; but when, as in Pennsylvania, July 18, federal troops were brought into play, the strongest and most triumphant mobs refused to attack them, and quietly retired before their advance. In a single instance, at Baltimore, some stones were thrown, in other cases the mere appearance of federal troops was sufficient to restore at least temporary order. Since that time the "domestic violence" clause has been as inoperative as before 1860—1. See authorities under articles referred to: Martin vs. Mott, 12 Wheat, 19; Metropolitan Bank vs Van Dyck, 27 N. Y., 400; Prize Cases, 2 Black., 635; The Tropic Wind, 24 Law Rep., 144, the acts of May 2, 1792, and Feb. 28, 1793, are in 1 Stat. at Large, 264, 424; the act of March 3, 1807, in 2 Stat. at Large, 443; those of July 13, July 29, and Aug. 6, 1861, in 12 Stat. at Large, 255, 281, 326. II. See Story's Commentaries, § 1807, Duer's Constitutional Jurisprudence, 340; Tiffany's Constitutional Law, § 568; Cooley's Constitutional Limitations, 169; authorities under RECONSTRUCTION, and states referred to.

ALEXANDER JOHNSTON.

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