to enable them to reclaim their fugitive slaves, who should have escaped into other states, where slavery was not tolerated. The want of such a provision under the confederation was felt, as a grievous inconvenience, by the slave-holding states,1 since in many states no aid whatsoever would be allowed to the owners; and sometimes indeed they met with open resistance. In fact, it cannot escape the attention of every intelligent reader, that many sacrifices of opinion and feeling are to be found made by the Eastern and Middle states to the peculiar interests of the south. This forms no just subject of complaint; but it should for ever repress the delusive and mischievous notion, that the south has not at all times had its full share of benefits from the Union.

§ 1806. It is obvious, that these provisions for the arrest and removal of fugitives of both classes contemplate summary ministerial proceedings, and not the ordinary course of judicial investigations, to ascertain, whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy. In cases of suspected crimes the guilt or innocence of the party is to be made out at his trial; and not upon the preliminary inquiry, whether he shall be delivered up. All, that would seem in such cases to be necessary, is, that there should be primâ facie evidence before the executive authority to satisfy its judgment, that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial. And in the cases of fugitive slaves there would seem to be the same necessity of requir

1 1 Tuck, Black. Comm. App. 366. See also Serg. on Const. ch.31 p. 385, (ch. 33, p. 394 to 398, 2d edit.) Glen v. Hodges, 9 John. R. 67; Commonwealth v. Halloway, 2 Serg. & Rawle R. 306.

2 See Serg. on Const. ch. 31 o. 385, 2d edit. ch. 33, p. 394.)

ing only prima facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at the common law. Congress appear to have acted upon this opinion; and, accordingly, in the statute upon this subject have authorized summary proceedings before a magistrate, upon which he may grant a warrant for a removal.1

1 Act of 12 Feb. 1793, ch. 51, (ch. 7); Serg. on Const. ch. 31, p. 387, (2d edit. ch. 33, p. 397, 398); Glen v. Hodges, 9 John. R. 62; Wright v. Deacon, 5 Serg. & R. 62; Commonwealth v. Griffin, 2 Pick. R. 11.

CHAPTER XLI.

GUARANTY OF REPUBLICAN GOVERNMENT MODE OF MAKING AMENDMENTS.

§ 1807. The fourth section of the fourth article is as follows: "The United States shall guaranty to every "state in this Union a republican form of government; "and shall 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."

§ 1808. The want of a provision of this nature was felt, as a capital defect in the plan of the confederation, as it might in its consequences endanger, if not overthrow, the Union. Without a guaranty, the assistance to be derived from the national government in repelling domestic dangers, which might threaten the existence of the state constitutions, could not be demanded, as a right, from the national government. Usurpation might raise its standard, and trample upon the liberties of the people, while the national government could legally do nothing more, than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law; while no succour could be constitutionally afforded by the Union to the friends and supporters of the government.1 But this is not all. The destruction of the national government itself, or of neighbouring states, might result from a successful rebellion in a single state. Who can determine, what would have been the issue, if

1 The Federalist, No. 21.

the insurrection in Massachusetts, in 1787, had been successful, and the malecontents had been headed by a Cæsar or a Cromwell?1 If a despotic or monarchical government were established in one state, it would bring on the ruin of the whole republic. Montesquieu has acutely remarked, that confederated governments should be formed only between states, whose form of government is not only similar, but also republican."

§ 1809. The Federalist has spoken with so much force and propriety upon this subject, that it supercedes all further reasoning. "In a confederacy," says that work," founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist, that the forms of government, under which the compact was entered into, should be substantially maintained.

§ 1810. "But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the constitution? Governments of dis

similar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. 'As the confederate republic of Germany,' says Montesquieu, consists of free cities and petty states, subject to different princes, experience shows us, that it is more imperfect, than that of

The Federalist, No. 21.

2 Montesq. B. 9, ch. 1, 2; 1 Tuck. Black. Comm. App. 366, 367. — This clause of guaranty was unanimously adopted in the convention. Journ. of Convention, 113, 189.

3 The Federalist, No. 21.

6

'Greece was undone,' he

Holland and Switzerland.' adds, as soon as the king of Macedon obtained a seat among the Amphyctions.' In the latter case, no doubt, the disproportionate force, as well as the monarchical form of the new confederate, had its share of influence on the events.

§ 1811. "It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the state governments, without the concurrence of the states themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the constitution. But who can say, what experiments may be produced by the caprice of particular states, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question, it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government, which supposes a pre-existing government of the form, which is to be guaranteed. As long therefore as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. Whenever the states may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions: a restriction, which, it is presumed, will hardly be considered as a grievance.