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§ 467. “Domestic Violence.”

The Federal Authority is not required or empowered to interfere to protect a State against domestic violence, except on the application of the Executive Government of the State. The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive. If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with inter-state commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself. Were it otherwise, the Federal Government would be dependent on the Governments of the States for the effective exercise of its powers. And not only may the Executive Government interfere to suppress by force a rebellion which cripples its powers, but the federal courts may interfere in a peaceful way by issuing an injunction against the offenders, and executing the judgment of the


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Court in the ordinary way. These principles were conclusively settled in the United States, in 1895, by the case of Re Debs (158 U.S. 564). Debs and others were officers of a trade union in Illinois, who combined to boycott the cars of the Pullman Palace Car Company, and proceeded by threats, intimidation, force and violence, to obstruct and wreck trains engaged in inter-state commerce, and in carrying the United States Mails. A Federal Circuit Court in Illinois, on a bill filed by the Pullman Company, granted an injunction against Debs and his associates. Debs, having been attached for disobedience to the injunction, applied to the Supreme Court of the United States for a writ of habeas corpus, which was refused on the ground that the Circuit Court had authority to issue and enforce the injunction.

“There is no such impotency in the National Government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers, and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of inter-state commerce, or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the Nation to compel obedience to its laws. But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of inter-state commerce or the transportation of the mails? Is the army the only instrument by which rights of the public can be enforced and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individual suffering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with nor does it destroy the right of appeal in an orderly way to the courts for a judicial determination, and an exercise of their powers by writ of injunction and otherwise to accomplish the same result.” (Per Brewer, J., Re Debs, 158 U.S. 582.)

“We hold it to be an incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent.” (Per Bradley, J., Exp. Siebold, 100 U.S. 395.)

Custody of offenders against laws of the Commonwealth.

120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth468, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

HISTORICAL NOTE.—A clause in substantially the same words was in the Commonwealth Bill of 1891, and was adopted at the Adelaide session, 1897. At the Melbourne session the clause was verbally amended. (Conv. Deb., Melb., pp. 692–3.) A verbal alteration was also made after the fourth report.

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