Cyclopædia of Political Science, Political Economy, and the Political History of the United States
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
—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.
—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.
—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
—The unusual circumstances of the case, and the criticisms of some of the president's measures (see
—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,
—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.
—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
—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
—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
—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
—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
—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.
—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
—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
—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.
—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.
Return to top