tors and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators."156

The power granted by this section has been very little used by Congress, except during the period following the Civil War. Congress, however, possesses this power of control over these elections in the fullest extent, and can either provide for complete Federal control of such election or pass laws and regulations binding on the election officers appointed by the States. 157

§ 107. Guaranties to the States by the United States.-The United States guarantees to the States a republican form of government, and also protection against foreign invasion, and, on request from the Legislature, or of the Executive when the Legislature cannot be convened, against domestic violence.158

The duty of the United States Government to protect each State against foreign invasion is an absolute one. Its duty to protect it against domestic violences only arises upon request either by the Legislature of the State or of the Executive when the Legislature cannot be convened. This qualification in cases of domestic violence was inserted to prevent the danger of Federal interference with State affairs, except in cases of absolute necessity.

By a republican form of government is meant one governed by representatives chosen by the people. This does not necessarily imply full manhood suffrage. Except for the restrictions to the contrary in the last two amendments, each State can put whatever restrictions upon the exercise of the franchise it deems expedient and proper. In the early period of our history property qualifications for voting were imposed in nearly every State. Whether the suffrage might be restricted to such an extent as to make the Government cease to be republican is a question which has never yet arisen. This guaranty of a republican form of government in each State is not only for the benefit of the people of the particular State but also for those of all the other 158 United States Constitution, Article IV., Section IV.

156 United States Constitution, Article I., Section IV., Clause I. 157 Ex parte Siebold, 100 U. S. 371.

States. It will therefore be enforced not only for but also against the citizens of a State. A State Constitution which changes the form of government of a State to some other form than republican, even if adopted by the people of the State in the regular form prescribed by amending their Constitution, would be set aside by the United States Courts. In cases of conflict between rival sets of officials, each claiming to constitute the true Government of the State, the question as to which is the lawful Government is a political one for the Executive Department of the United States Government to decide. After the Executive Department has rendered their decision, the Judiciary Department is bound thereby. This point was determined by the decision in Luther v. Borden,159 the case arising out of the Dorr's Rebellion in Rhode Island.

§ 108. The admission of new States. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress."160

The latter part of this provision was inserted to do away with any fear on the part of the States that the Federal Government might attempt to break their strength by dividing them up; it was of particular interest to Massachusetts, which was at this time strongly resisting the effort which Maine was making to break away from her.161

Prior laws of Congress in relation to the Territories and their government have no force in the new State after its admission and its adoption of a State Constitution, unless they are incorporated into such Constitution.162 Upon the admission of a new

159 7 Howard, 1.

100 United States Constitution, Article IV., Section III., Clause I.

181 One result of the insertion of this provision was that the Maine delegates to the Convention, called in Massachusetts to consider the Constitution, voted against its rati

fication and in conjunction with the sympathizers with the Shay Rebellion, almost succeeded in causing its defeat in this Convention, the final vote being only 187-168.

162 Permoli v. First Municipality, 3 Howard, 589; Strader v. Graham, 10 Howard, 94.

State the right of eminent domain passes to it from the Federal Government, but the ownership of the public lands remain in the latter.183 New States come into the Union with the same rights and statutes in all respects as the previously existing States.164

163 Pollard v. Hogan, 3 Howard,

212.

164 Pollard v. Hogan, 3 Howard,

212; Bridge Co. v. United States, 105 U. S., 491; McCready v. Virginia, 94 U. S., 394.

CHAPTER VI.

THE DISTRIBUTION OF POWERS BETWEEN THE DIFFERENT DEPARTMENTS OF THE FEDERAL GOVERNMENT.

$109. The Natural Division of Governmental Powers.— The powers and duties of every government fall naturally into three divisions, commonly called the Legislative, Executive and Judicial Departments. This division has been recognized by jurists from the earliest times. Aristotle1 says: "In every form of government there are three departments, and in every form the wise lawgiver must consider what in respect to each of these is for its interest. If all is well with these, all must needs be well with it, and the difference between forms of government are differences in respect to these. Of these three one is the part which deliberates about public affairs, and the second is that which has to do with the offices * *; and the third is the judicial part." The separation and independence of these three departments, from, and of, one another, is one of the most characteristic features of a free country.

"In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and whenever these two powers are united together there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justices, with all the power which he, as legislator, thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the supervision of its own independence, and therewith of the liberty of the subject."

'Politics, Book VI., Chap. XIV.

Blackstone's Commentaries, Book I., Chap. II.

The Supreme Court has thus indicated the proper spheres of these three departments: "The difference between the departments undoubtedly is, that the legislative makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily."3

§ 110. Division of Powers in the English Government.The appreciation of the importance of this division was a matter of slow evolution in English history. For many centuries the King was the central figure of all these departments. The King exacted laws, sometimes with, sometimes without the consent of the barons and commonality; the King executed the laws and was the source of all justice. Nor was the distinction between these departments to be seen in the duties of the King's assistants. Both the Witenagemote of the Anglo-Saxons and the Curia Regis of the Norman Kings combined duties belonging to all departments. They constituted the highest Court of the Kingdom, they were the rudimentary legislative body of the realm, and many of the members held executive offices. In the reign of Henry II. the judicial system of England began to take form and the Courts of the Exchequer, the King's Bench and the Common Pleas branched off from the Curia Regis. The Judicial Power of the House of Lords still remains, however, as a reminder of this early union of the executive and judicial departments. The development of Parliament in the thirteenth and fourteenth centuries gave to England, in the rough, this three-fold division of powers. But this division has never even yet been worked out in England to its completion. There has never in that country been a complete independence and separation of the three departments. The King has always been, at first in reality, later in theory, the fountain-head of Justice and the head of the judicial department. As late as the seventeenth century it was held that he had the right, if he chose to exercise. it, of sitting with the judge in any court, or even of trying cases himself.