The commoner. (Lincoln, Neb.) 1901-1923, January 31, 1913, Page 7, Image 7

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JANUARY 31, 1913
this same James Wilson, witli that loyalty to
the public interest, that devotion to duty which
characterized him and many others of his type,
lost his life while traveling in the southern cir
cuit whore ho was assisting Judge Jredcll in the
work of Judge Iredell's circuit.
We should not forget that when this James
Wilson stated that he know the state of Geor
gia to be republican in form the constitution of
Georgia contained an "initiative" provision in
a form as pure as the initiative may be found
in any of the states today. Indeed, Mr. Presi
dent, the constitution of that state provided as
"Art, 63. No alteration shall be made in this
constitution without petition from a majority
of the counties, and the petitions from each
county to be signed by a majority of the voters
in each county within the state, at which time
the assembly shall order a convention to be
assembled for that purpose, specifying the
alterations to be made according to the petitions
preferred to the assembly by the majority of
counties as aforesaid."
Mr. President, there is only one forum which
has the authority to determine whether or not
there exists in those states which have the
initiative and referendum a republican form of
government. That forum is not the supreme
court of the United States nor any other court,
and this has been settled by a line of decisions
so convincing that it would seem idle to discuss
the question. In every case, so far as I am in
formed, the federal authorities, including the
supreme court of the United States, have treated
this question as' a political one.
In the case of Luther v. Borden (7 How., 1),
where the question was raised on the so-called
charter government, or so-called Dorr rebellion,
it was contended ' that there did not exist in
Rhode Island a republican form of government,
and the court said:
"The fourth eeption of the fourth article of
the constitution of the United States shall guar
antee to eve'ry state in the union a republican
form of government, and shall protect each of
them against invasion, and; on the application
of the legislature or of the executive (when the
legislature can , not be convened) , against do
mestic violence,
"Under! thi'a .ajticle. of the constitution it rests
with congress to' decide what government is the
established one in a state. For as the United
States guarantee to each state a republican gov
ernment, congress must necessarily decide what
government is established in the state before
it can determine whether it is republican or not.
And when the senators and representatives of
a state are admitted into the councils of the
union the authority of the government under
which they are appointed as well as its republi
can character is recognized by the proper con
stitutional authority. And its decision is bind
ing on every other department of the govern
ment and could not be questioned in a judicial
tribunal. It is true that the contest in this
case did not last long enough to bring the
matter to this issue, and as no senators or rep
resentatives were elected under the authority of
the government of which Mr. Dorr was the head,
congress was not called upon to decide the con
troversy. Yet the right to decide is placed there
and not in the courts. (See p. 42.)"
In the case of Texas v. White (7 Wall. U. S.,
700-730) and the case of Taylor v. Beckham
(178 U. S., 548) the question in both cases as
to whether any government set up in a state
was republican was held to be a political rather
than a judicial question.
In the case of Minor v. Happersett (21 Wall.,
162), at pages 175 and 176, the court, consider
ing the question of a republican form of govern
ment, said:
"The guaranty is of a republican form of
government. No particular government is.
designated as republican, neither is the exact
form to be guarantied, in any manner especially
designated. Here, as in the other parts of the
instrument, we are compelled to resort else
where to ascertain what was Intended.
"The guaranty necessarily implies a duty on
the part of the states themselves to provide such
a government. All the states had government
when the constitution was adopted. In all the
people participated to some extent, through
their representatives elected in the manner
specially provided. These governments the con
stitution did not change. They were accepted
precisely as tliey were, and it is therefore to be
presumed that they were such as it was the
duty of the states to provide. Thus we have
unmistakable evidence of what was republican
In form within the meaning of that term as em
ployed in the constitution."
A. part of the "unmistakable" evidence which
The Commoner.
the court had before it when that decision was
rendered must have been judicial notice of the
initiative provision in the constitution of the
state of Georgia adopted in 1777.
The latest expression of the supreme court of
tho United States upon this question is tho
famous case commonly known as tho Oregon
case, wherein the plaintiff in error contended
that the "Initiative" wns in contravention of a
republican form of government. (Pacific States
Telephone & Telegraph Co. v. Oregon, reported
in 223 U. S. Kept., p. 118 ot seq.) Mr. Chief
Justice White, delivering the opinion of the
court, said:
"We premise by saying that while the contro
versy which this record presents is of much im
portance it is not novel. It is important, sinco
it calls upon us to decide whether it is the duty
of courts or the province of congress to de
termine when a state has ceased to be republi
can in form and to enforce the guaranty of the
constitution on that subject. It is not novel, as
that question has long sinco been determined by
this court conformably to the practice of the
government from the beginning to be political
in character and therofore not cognizable by the
judicial power, but solely committed by the con
stitution to tho judgment of congress.
"As the issues presented, in their very essence,
are and have long since by this court been defi
nitely determined to be political and govern
mental and embraced within the scopo of the
powers conferred upon congress and not there
fore within the reach of judicial powor, it fol
lows that the case presented is not within our
jurisdiction, and tho writ of error must there
fore be, and it is, dismissed for want of juris
diction." Of course all candid and well-informed per
sons will admit that the federal constitutional
convention of 1787 provided for national repre
sentative government, but it does not follow
that the delegates in their debates committod
themselves to the Idea that there Is only one
kind of republican form of government. Sona--tors
and representatives from various states
which have adopted the system of direct legis
lation designated as the "'initiative and refercn-
dum" have been admitted into the congress of
the United States and occupy seats in tho senate
and house of representatives. Thus the only
forum known to our constitution, laws, and in
stitutions possessing power and jurisdiction to
pass upon the question as to whether or not the
initiative and referendum constitute a republi
can form of government has determined that
question in tho affirmative, for surely congress
would not admit representatives or senators Into
the councils of the nation from political sub
divisions not republican in form.
Mr. President, I ask permission at this point
to insert in the Record as part of my remarks
an excerpt from the able brief of Hon. Gcorgo
Fred Williams, counsel for the states of Cali
fornia, Arkansas, Colorado, South Dakota, and
Nebraska, and of counsel for the state of Oregon,
which brief Mr. Williams filed in tho supreme
court of the United States in the case of the
Pacific States Telephone & Telegraph Co.,
against Oregon, reported In Two hundred and
twenty-third United States Reports, pages 118
et seq.
The President pro tempore. Without objec
tion, leave is granted.
The excerpt is as follows:
"It Is apparent that our country Is In a con
dition of reaction against the control of privi
lege as powerful as that of France In 1792, or
England in 1838, or Switzerland in 1848.
"In France the republic was created, In
England parliamentary government became a
reality, and in Switzerland the Union of States
was perfected; here we are perfecting our de
mocracy. The present movement constitutes the
most momentous political revolution in our his
tory, conducted without bloodshed and even
without acrimonious political contests. It is a
movement economic in its nature and, accord
ingly, steady and Irresistible. Its objects are
political and it moves on like a tidal wave, which
legislatures and courts can not halt
"The causes of this movement are apparent.
Political organizations have not been respon
sive to tho popular will. The effort to obtain
good government by the selection of "good men"
has failed. Legislators have become the people's
masters in the exercise of unlimited power.
Party platforms are not regarded as pledges.
The people are unable to trust their servants.
A power has developed which dominates politi
cians parties, and public servants. Evidences
of repeating, bribery, corruption, and perversion
of delegates, representatives, and officials In
cities and states have persisted, and even the
judiciary has at times been found subject to
influences hostilo to tho pooplo's Interests. Tho
average citizen has abandonod efforts to rogu
latc party machinory and to participate in party
"Tho now political movement alms to clear
tho avenues betweon tho people and their in
stitutions. "The perversion of party caucuses has been
met by tho plan of direct nomination of candi
datfiB at tho polls. Even tho direct nomination
of delegates to presidential conventions is being
accepted; repeated scandals and notorious cor
ruption of legislatures In the election of United
States senators have caused two-thirds of tho
states to devise methods of circumventing the
constitutional method of election by tho legis
latures, and It Is probablo that In the Immediate
future the national constitution will bo amended
to secure direct election of senators by tho
"The numorous laws of states for the pre
vention of corrupt practices and the limitation
of campaign expenditures have been supple
mented by national legislation, which Is prob
ably but tho beginning of drastic enactments to
maintain tho purity of elections.
"The founders of the republic dreaded tho
power of the executive. Patrick Henry In
veighed against it. Jefferson insisted with im
passioned force that the republic would fall
through the usurpation of power by tho judicial
"Prophecy takes a hard test by the light of
experience. All fear of the executive has ceased
after more than a century of trial. For the flrBt
time tho judiciary has become the subject of
apprehension in the last few years.
"But it Is tho legislative department that has
proved the weakest of tho departments of state.
The people are strengthening this branch of
democratic government by applying more de
mocracy. "The sovereignty Is being placed in practice
where It exists in theory, with the people; tho
instrument is direct legislation,
"In adopting thlB system there have been no
interferences with tho regular operations of tho
customary legislative machinery. Representa
tive government remains, but its products aro
no longer beyond popular reach. Vicious and
corrupted acts can no longer be fastened upon
the people against tho will of the majority.
"Experience has proven that it Is not safe
to trust delegates with unlimited power to make
laws, and the question presented in this case is
whether there remains in the people the power
to apply controlling Influences to them.
"The history of this year's legislation fur
nishes a long list of broken pledges.
"Tho governors of Colorado, New York, and
New Hampshire have publicly denounced tho
legislatures of their states for failure to redeem
the direct promises of party platforms.
"Governor Shafroth, of Colorado, declared
that In the longest legislative session in 30
years not a pledge has been redeemed.
"In Maine a direct primary act was refused
by the legislature, and at the polls, under the
'initiative' amendment of the constitution, the
measure was adopted by a vote of 55,840 yeas
to 17,751 nays.
"In 1902, under a law permitting an expres
sion of public opinion at the polls, the people
of Illinois favored by a vote of 428,000 to 87,000
a constitutional amendment providing the initia
tive and referendum. Tho legislatures for eight
years took no action. In 1910 the people again
made the demand by vote of 447,908 yeas to
128,398 nays. All tho political platforms in
dorsed It. Tho legislature this year has re
fused to pass the measure.
"Even In England faith in parliamentary gov
ernment has been shaken.- Mr. Lecky says:
" 'A growing distrust and contempt for rep
resentative bodies has been one of the most
characteristic features of the closing yeaTs of
the nineteenth century.' (Democracy v. Liberty,
I, pp. 142-143.)
"Mr. Dicey remarks: 'Faith in parliaments
has undergone an eclipse.' (13 Harvard Law
Rev., 73-74.)
"Governor Woodrow Wilson has described tho
political situation as follows:
" 'Many of the old formulas of our business
and of our politics have been outgrown. Wo
still revere 'representative government,' but we
are forced to admit that the governments we
actually have have been deprived of their rep
resentative character. They do not represent us.
(Continued on Pago 10.)
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