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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 17, 1911)
WtWIWIIUI.MwlM""iW 4 The Commoner. VOLUME 11, NUMBER 45 WSSJmxmmimmw'rj"-' rwCTtssiuw H". i: ! 144. ' R! 'f re & :r' I. . ? K: MP ht. wr fcaJjc r The Commoner. Direct Legislation Before Supreme Court I..5IJPO WEEKLY O A Entered at the Postoffice at Lincoln, Nebraska, as second-class matter. "WXJJAAM J. BSTAX CBAEIJ3 W. BlIYAK KdJr od Proprietor J.pHshcr RicnxjtD I Kbccajjti ROHtraUX Room and Btzslocis Asodste BdJlor Office S24-O0 SouUi IXb. Street Oh Ver fl.00 Six Mfitfci .so In Clubs of Five or more, per year. Three Months .35 Stogie Copy Sample Copies Free. Foreign Post, 5c Extra. SUBSCRIPTIONS can bo sent direct to The Com moner. They can also bo sent through newspapers which have advertised a clubbing- rate, or through local agents, where sub-agnts have been ap pointed. All remittances should be sent by post office money order, express order, or by bank draft on New York or Chicago. Io not send individual checks, stamps or money. RENEWALS The date on your wrapper shows the time to which your subscription is paid. Thus January 21, '11, means that payment has been re ceived to and Including the last issue of January, 1911. Two weeks are required after money has been received before the date on wrapper can be changed. CHANGE OP ADDRESS Subscribers requesting a change of address must give old as well as new address. ADVERTISING Rates will be furnished upon application. Address all communications to THE COMMONER, Lincoln, Neb. WATCH rr GROW Mr. Sryam has given instructions that every new subscriber shall receive The Commoner for a perlea of two years (which will carry It be yond the presidential election of 1912) for the sum ef one dollar. Every Commoner reader is asked to stcuro at least one new subscriber. Maay will be able to secure more than one. Everyone, however, may render some aid ia this work. The following named readers have sent in new subscribers: Jno. W. Crockett, Ark.; Den nis Dana, Mont.; Wallace Putney, Mich.; Ed. Meredith, Okls.; Jno. A. Daubonnire, O.; Calvary- Lunsford, W. Va.; J. P. Riffe, Ky.; L. W. Kelly, Va.; Earl Griffin, la.; W. A. Boyd, O.; J. P. Crow, O.; Mrs. W. J. Doyle, N. D.; G. M. Keen, S. D.; Jas. Kinsella, la.; G. M. Booth, la.; Claude C. Gray, 8. D.; Stephen Dunkard, Mont.; G. W. Dyer, Tex.; J. B. Kerr, Idaho; J. P. Huntzinger, Okla.; H. Van Maren, Iowa; Ish Davis, Ariz.; Jno. Cassidy, Cal.; B. F. Baker, Kan.; R. L. Doble, Me.; G. Miller, la.; K. C. Bartlett, Neb.; G. H. Epler, Tex.; Wm. M. Oseir, la.; J. B. Sunderland, O.; Walton Pink, O.; Geo. B. Huoff, N. J.; J. E. Robinson, Ky.; J. S. Hoyt, O.; Henry Miller, Pa.; P. C. Elser, O.; Jno. Alderson, Tenn.; Lloyd Talbott, Wis.; W. B. Liierle, 111.; J. C. Beam, 8r., 111.; A. L. Law rence, Mich.; E. L. Bryan, Wash.; P. E. George, Mass.; Jessie M. Pinney, O.; W. K. Parker, 111.; W. B. Morse, Wash.; J. R. McCann, 111.; L. N. Corkran, Md.; Wm. Bake, la.; A. J. Dunmire, Pa.; W. C. Brooks, Mo.; L. H. Daniels, la.; B. H. McKinney, 111.; W.. G. W. Gelger, la.; Dr. T. O'Brien, N. D.; Wm. H. Lewis, N. C; J. M. Mc Kay, Okla.; S. A. Coff, la.; W. E. Begley, Ky.; W. R. Grant, la.; H. Grabach, O.; W. T. Fox, Kan.; Mrs. W. C. Prescott, 111.; H. H. Mercer, Pa.; Jno. Forst, Kan.; R. Harden, 111.; Thoa. J. Fagan, Minn.; W. G. Boyce, Mo.; J. P. Elliott, 111.; E. S. Fitzpatrick, Mich.; A. Holdale, Minn.; Wm. Dellinger, N. C; J. F. Schmltt, 111.; David Dennis, W. Va.; J. C. Owen, Ky.; J. B. Liston, 111.; L. A. Wold, Wash.; H. Kelsey, la.; Whit field Tuck, Mass.; Wm. Chilton, Va.; J. M. Jones, Kan.; G. M. Dyer, Tex.; J. E. Hancock, Tex.; J, F. Hagans, O.; H. W. Hebrick, O.; R. H. Garrison, Tex.; M. M. Fry, Ida.; Joe Doville,. O.; Lyman Cole, N. Y.; C. McLain, Cal.; Jno. Hopkins, la.; M. McKibben, la.; W. H. Kester son. Mo.; J. S. Hogshead, Cal.; P. A. Hill, Utah; P. B. Lewis, Va.; W. W. Cheadle, Wash.; C. C. Cornett, Ind.; Henry Heidacker, 111.; Union Pratt, Kan.; H. M. Ferce, Minn.; B. F. Faust, O.; O. Hubbard, Miss.; J. J. Jones, Mo.; W. E. Smith, W. Va.; B. F. Gamble, Tex.; D. B. Topham, Neb. ; Jos. Deviyne, Neb. ; Jno. L. Bates, la.; Dayton Wait, Kan.; C. Hinkson, la.; D. W. Fagley, Pa.; N. B. Yadon, Mo.; J. M. Strator, Ind.; J. R. Riddle, Mo.; G. W. Doty, Kan.; W. H, Sayne, Me. APPRECIATED IN KANSAS B. A. Jlctcher, Caldwell, Kan., Nov. 3, 1011. J Find enclosed bank draft for $17.60 for which send TIks Commoner to the following named persons for the period set opposite their respec tive names. George Fred Williams of Massachusetts has filed an interesting and instructive brief in the direct legislation case now before the United States supreme court The first Installment of this brief was printed in The Commoner of November 10. The second installment appears in this issue. Other in stallments will follow. The second installment of Mr. Williams' brief follows: TL The Guaranty A. THE DEMAND FOR THE GUARANTY Quotations could be multiplied to show that the entire direction of the people's thought was toward the protection of national as well as state governments against the return of the tyrannies which they had just thrown off by rebellion. "In truth," said Jefferson, "the abuses of monarchy had so much filled all the space of political contemplation that we imagined every thing republican, which was not monarchy." Letter to Kerschieval, July 12, 1816. The sole purpose of the guaranty clause was to protect the union and states against monarchial and artistocratic changes. Cooley Constitutional Limitations (7th Ed.) p. 28. "to defend the system against aristocratic or monarchial invasions," says Madison. Federa list, Letter 43. Patrick Henry cried out against the constitu tion, "away with your president; we shall have a king; the army will salute him monarch!" Franklin feared that the government would result in monarchy. Eliot's Debates. From the Philadelphia convention not a word can be cited to show that the fear of an exten sion of popular sovereignty had any place in the minds of the delegates. "At this rate," said Nathaniel Gorham of Massachusetts, "an enterprising citizen might erect the standard of monarchy in a particular state; might extend his. views from state to state, and threaten to establish a tyranny over the whole, and the general government be com pelled to remain an inactive witness to its own destruction." Eliot's Debates, Vol V., p. 333. "The opposition to the constitution came not from any apprehension of danger from the extent of power reserved to the states, but on the other hand, entirely through fear of what might result from the exercise of the power granted to the central government." South Carolina v. U. S., 199 U. S. 457. B. HISTORY OF THE GUARANTY CLAUSE The act of the confederation congress, April 23d, 1784, contained the precedent for this pro vision. Gerry of Massachusetts, Sherman of Connecti cut, Spaight of North Carolina, later members of the constitutional convention of 1787 voted on the measure giving power to the people of the northwest territory to form governments, and providing "Sixth. That their respective governments shall be republican." A later act of the confederation congress of July 13th, 1787, contained the same provision. The history of the progress of Article 4, Sec tion 4, in the constitutional convention of 1787 appears from Elliot's Debates, Volume 5, to be as follows: The measure first appeared in what is known as the Virginia form introduced by Edmund Randolph in this shape, Art. XI, "Resolved that a republican form of government and the territory of each state except in the instance of a voluntary function of government and territory ought to be guaran teed by the United States to each state." (Page 122). Later an amended form of the article ap peared as follows: "That a republican constitution and its exist ing laws ought to be guaranteed to each state by the United States." (Page 182.) James Madison, Jr., Virginia, moved to sub stitute, "That the constitutional authority of the states shall be guaranteed to them respec tively against domestic as well . as foreign violence." William Churchill Houston of New Jersey objected to perpetuating the existing constitu tions, instancing that of Georgia as a very bad one." (Page 333.) Edmund Randolph moved to add as an amendment "And that no state be at liberty to form any other than a republican govern ment." (Page 333.) James Wilson (Pa.) moved as a better expres sion of the idea "that a republican form of government shall be guaranteed to each state and that each state shall be protected against foreign and domestic violence." (Page 333.) Mr. Madison and Mr. Randolph thereupon withdrew their propositions. The article emerged from the committee on detail as "The United States shall guaranty to each state a republican form of government" etc. (page 381) aad the final form was the same excepting for the substitution of the word "every" for "each" and the addition of the words, "in this union." C. WHAT IS THE GUARANTY? The word "guaranty" has, and at that time had, a well defined legal significance. "A guaranty is a promise to answer for the payment of some debt or the performance of some duty, in the case of the failure of another person, who in the first instance is liable." Kent's Com. (12 Ed.) Vol. IV, p. 121. "The contract of guaranty is a collateral undertaking. It can not exist without the presence of a main or substantive liability to which it is collateral. If there is no such sub stantive liability on the part of a third per son either express or implied, that Is to say if there is no debt, default or miscarriage, present or prospective, there is nothing to guarantee and hence can be no contract of guaranty." Brandt on Suretyship and Guaranty, Sec tion I, il I, p. 5. This word was not adopted carelessly or without meaning. It was clearly distinguished from the later promise of protection, and there Is also significance in the fact that the guaranty was to "every state" while the promise of pro tection was to each. These men long skilled In the framing of their revolutionary documents understood the use of words. Edmund Randolph, Alexander Hamilton, Gouverneur Morris, William C. Houston, John Rutledge, James Wilson, who debated this ar ticle were lawyers, and understood the exact legal meaning of the word "guaranty." D. WHO ARE THE PARTIES TO THE GUARANTY? A guaranty involves three distinct parties: 1st the promissee, the beneficiary. 2d the promissor, the original obligor. 3d the guarantor, assuring the promissee for the benefit of the promissor. A guaranty is an agreement not for the interest of the guarantor. The promissee is directly named to wit "every state in this union;" the original promissor is also included in this category. Each state becomes the original promissor to every state, that it will maintain a republican form for the benefit of each and every state. The undertaking of the states themselves under the guaranty clause may be a' repetition of the description of the social compact in the Massachusetts constitution "the people cove nants with each citizen and each citizen cove nants with the whole people, &c," which being applied would read, "The states covenant with each state and each state covenants with all the states, &c," and the undertaking of the United States is to guarantee the performance of these covenants. E. WHO HAS THE POWER OF INITIATIVE This question must be answered in contem plation of the powers described and reserved in the constitution of the United States. By Art. I, Sec. I, the legislative powers of congress are confined to the powers "herein granted." Therefore the congress takes away no powers from the people of the states, except those con tained within the pages of the United States Constitution. But the peoples of the states forced upon the constitution explicit additional declarations as to the reserved powers of the people of the states. Art. IX declares, "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people," and Amend X. "The powers not delegated to the United States by the constitution, nor prohibited by It to the states are reserved to the states respectively or to the people." 1. A State Must Make the Demand Clearly only the promisee can demand en forcement and the only promisees under this guaranty are the states. Judge Story ("Constitution," Vol. II, Sec. .1815) declares that this section of Art. 4 was v 4