out the United States; and in part absolute prohibitions upon the exercise, in any manner, of the powers specified. These absolute prohibitions are to be found, in the main, in § 9 of Article I and in the first eight Amendments.

In regard to these first eight Amendments it has sometimes been said that it was only an excess of caution that required their incorporation in the Federal Constitution. Inasmuch as the United States was to have only the powers expressly or impliedly given, it has been asserted that the General Government would have been, in the absence of such express limitations, without the authority to exercise the powers that these Amendments enumerate. A consideration, however, of the construction which several of the provisions of these Amendments have received, especially during recent years, will, it is believed, make it evident that these express limitations upon the Federal Government have been of considerable importance.

Implied limitations upon the Federal Government

The implied limitations upon the Federal Government are: first, those implied in the express limitations; and second, those which arise from the general nature of the American Federal State. The Constitution looks to a preservation of the several States in the administrative autonomy that is allotted to them, and from this is deduced the principle that the Federal Government may not, unless it is absolutely necessary to its own efficiency, interfere with the free operation of State governments by way either of imposing upon them the performance of duties, or of unduly restraining their freedom of action by way of taxation or otherwise.

The principles governing the deduction of implied from express limitations upon the Federal Government are the same as those applicable to the construction of implied powers.

Exclusive and concurrent Federal powers

The legislative powers possessed by the Federal Government may be divided into two classes; the one embracing those powers the exercise of which is exclusively vested in the General Government; the other those which, in default c of Federal exercise, may be employed by the States.

Some of the powers granted by the Constitution to the General Government are expressly denied to the States. As to the exclusive character of the Federal jurisdiction over these there cannot be, of course, any question. It has, however, been often a matter difficult of determination whether or not various of the powers given to the United States, but not expressly made exclusive, or denied to the States, are so exclusively subject to Federal control that the exercise of them by the States is under no circumstances to be permitted. Shortly stated, the principle that the Supreme Court has laid down for determining this question in each particular case as it has arisen has been the following: As regards generally the powers granted to the National Government there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Laws thus passed by the States, are, however, subject to suspension at any time by the enactment by Congress of laws governing the same subjects.

8

8 Sturges v. Crowninshield, 4 Wh. 122, 4 L. ed. 529. By the enactment of a Federal law a State law upon the same subject is not nullified, but merely suspended. Upon the repeal of the Federal statute the State law again operates without re-enactment by the State.

CHAPTER V

THE FEDERAL CONTROL OF THE FORM OF STATE

GOVERNMENTS

State autonomy

In the foregoing pages the sovereignty of the United States as opposed to, and inconsistent with, the continued sovereignty of its individual commonwealth members has been sufficiently declared. Whatever doubt there may have been upon this point before the Civil War, the result of that gigantic struggle has left no room for disagreement since, and the subsequent unequivocal assertions of the Federal courts have simply registered conclusions that no one could rationally question. Starting, then, from this fundamental fact that, looking at the matter from a purely legal point of view, the individual Commonwealths constitute self-governing but politically subordinate portions of the United States, we shall now proceed to consider the degree of autonomy secured them under the Federal Constitution. This subject may conveniently be divided into two parts. First, the degree of control that the Federal Government may constitutionally exercise over the form of government that the several States may establish for themselves; and, secondly, the extent to which the General Government may supervise or control the exercise by the States of those powers that are reserved to them. First, then, as to the control that may be constitutionally exercised by the United States over the forms of government of its constituent units.

Speaking generally, it may be said that, provided its government be republican in form, each State of the Union may establish such governmental organs as it sees fit, and apportion among them its executive, legislative and judicial powers according to its own judgment as to what is expedient and proper.

Republican form of government defined

The Federal Constitution provides that "The United States shall guarantee to every State in this Union a republican form of government, and protect each of them against invasion; and, on application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence."

In form, the first clause of this section would appear to be for the benefit of the States and to impose a duty upon the Federal Government, and such undoubtedly would be its effect should a foreign government attempt to impose a government of any sort whatsoever upon the people of one of the States against their will; or should a domestic revolution result in the establishment in power of a government not sanctioned by or not freely agreed to by the electorate. In fact, however, this clause was so interpreted during the reconstruction times as to give to the Federal Government for several years an almost unlimited power of control of the domestic affairs of those States that had been in rebellion against its authority.

It will be noticed that the Constitution does not itself define the term "republican form of government." It has, however, always been an accepted rule of construction that the technical and special terms used in the Constitution are to be given that meaning which they had at the time that instrument was framed. This is but reasonable, for, in default of anything to the contrary, those who drafted the Constitution are to be presumed to

have intended the words which they used to have that meaning they knew them to have. For a definition, then, of "republican government" we must discover what in 1787 such a political form was considered to be. Certainly we may say that the governments of the thirteen original States as they existed at the time, the Constitution was drafted must have been considered as illustrating the republican type. Furthermore, the Constitutions of all those States which have been admitted to the Union since 1787 must be regarded as having been impliedly declared republican by Congress at the time of the giving of its assent to their entrance into the Union.

The late Judge Cooley, in his Principles of Constitutional Law, has perhaps defined the term as satisfactorily as anyone.1 "By a republican form of government,” he says, "is understood a government by representatives chosen by the people; and it contrasts on the one side with a democracy, in which the people or community as an organized whole wield the sovereign powers of government, and, on the other side, with the rule of one man as King, Emperor, Czar, or Sultan, or with that of one class of men, as an aristocracy." "In strictness," Judge Cooley goes on to say, "a republican government is by no means inconsistent with monarchical forms, for a King may be merely an hereditary or elective executive while the powers of legislation are left exclusively to a representative body freely chosen by the people. It is to be observed, however, that it is a republican form of government that is to be guaranteed; and in the light of the undoubted fact that by the Revolution it was expected and intended to throw off monarchical and aristocratic forms, there can be no question but that by a republican form of government was intended a government in which

1 Chapter XI.