Year: 1861

Nlerfyhan HdUe rs corpus cure, III "hicn
the majesty of the law was asserted a.
ganst the necessities which the presence
of Il revolution have imposed upon the
Government. Equally interesting, and
very pertinent to the present condition
of national affairs, are the following ex-
tracts from n decision delivered by the
same distinguished jurist. in the case of
Lnthcr Borden ct al, Howard
S c. Reports. These extracts are CIV
en- as having a strong moral effect, nt
least, on the present state of affairs in
this country. When carefully read and
considered they will, we think, pretty
well establish the right of the Executive
department of the State and the Federal
Government to determine the existence
of the facts authorizing the calling out
of the militia to suppress insurrecton or
invasion; and that after the President
has acted and called out the militia, the
Supreme Court of the United States has
no authority to inquire whether his de-
cision was right. This case arose ont of
the well known Dorr rebellion in Rode
| Island, in 1912, in which the plaintiff
brought an action of trespass against the
defendant for forcibly breaking and en-
tcring the plaintiffs house; 20 which the
defendant pleaded an insurrection of men
in arms to overthrow the Government of
the State by military force:' that the
plaintiff was aiding and abett,ng said in
surrection:' 'thut, at the time of the tres
pass, the State was under martial law,
and the defendant was enrolled in the
Fourth Company of Infantry in the town
of Warren &c. The decision discuss
cs very forcibly the provision of the
Constitution of the United States guar
antecing republican form Of Govern
ment to every State in the Union, and
of protecting each of them against inva-
sion and domestic violence, and rccog-
nizes the validity of the net of 2Sth Feb
'ruary, 1895. The opinion of the learn
ed Judge explains the Constitution and
laws of the United States on the subject
too clearly to require further comment.
And the applicability of the principles
Of the decision to the present state olaf
fairs, as far as warranted by the facts,
can be easily seen by the reader. At
ter discussing some preliminary matters
the learned Judge proceeds as follows:


Moreover, the Constitution of the IT,
nited States. as far as it has provided for
an emergency of this kind, and author
lied the General Government to inter-
frrc in the domestic concerns of n State,
has treated the subject as political in its
nature and placed the power in the hands
of that department The fourth section
of the fourth article of the Constitution
of the United States shall guarantee to
every State in the Union republican
form of government and shall protect
cacn of them against invasion; and on
the application of the Legislature or of
the Executive (when the Legislature can
not be convened, } against domestic vio-
lence' Under this article of the Consti-
tuition it rests with Congress to decide
what government is the established one
in State. So, too, as relates to the
clause in the above mentioned article Of
the Constitution, providing for cases of
domestic violence. 1t rested with Con-
gress, too, to determine upon the means
proper to be adopted to fulfill this guar
antee. 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 re-
auired the Federal Government to inter
fcre. But Congress thought otherwise,
and no doubt wisely; and by the act of
18th February, 1895, provided that in
caseof an insurrection in anyState against
the government thereof, it shall be law
full for the President of the United tates
on application of the Legislature of such
States or of the Executive when the Leg
islature cannot be convened, to call forth
such number Of the State as may be ap-
piled for as he may judge sufficient to
suppress such instruction BY this &C:
the power of deciding whether the cxigcn-
cy had arisen upon which the Govern
mcnt of the United States is bound to
interfere is given to the President.


after the president has acted and
called out the militia, is Circuit Court
of the United States authorized to en-.
quire whether his dicision was right
If it could then it would become the
duty of the Court, provided it came to
the conclusion that the President had
decided in orrectly, to discharge those
who were arrested or detained by the
troops in the service of the United States
or the Government which the President
was endcavoring to maintain. If the
judicial power extends SO far, the guar
antee contained in the Constitution of
the United States is guarantee Of an
archy, and not of order. 1t is said that
this power of the President is dangerous
to liberty,and may be abused All pow
er may be abused if placed in unworthy
hanls But it would be difficult, we
think, to point out any other hands in


which this power would be more safe, and
at the same time equally effectual.--
When citizens of the same State are in
arms against each other. and the con-
stituted authorities unable to execute the


laws, the iDterposition Of the United
States must be prompt, or it is of little
value. The ordinary course of proceed
ings in courts of justice would be utterly
uuht for the crisis. And the elevated