peace and before the reconstruction legislation, dividing them into districts and circuits for the courts of the United States, 192 which can only sit in States, not Territories,193 and providing for the expenses of the courts, held there with the consent of Congress after they had been divided into military districts. The Senate confirmed the appointments of judges, district attorneys, and marshals in those States for that purpose.194 The ChiefJustice of the United States sat in North Carolina in June, 1867,195 at a time when the State was in charge of a district commander. The existence of the disfranchised States in the Union was consequently recognized by all three of the departments into which the Federal government is divided. "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction." "If this government is continued after the courts are reinstated it is a gross abuse of power." 196 The guaranties of liberty in the Constitution were intended for war as well as peace, for times of rebellion as well as of general acquiescence in the authority of the government, and are only suspended when military necessity suspends all law and the courts are closed.197 The legality of the ratification of the Thirteenth and Fourteenth Amendments depended upon the legal existence of the State governments which ratified them, and which were not till after that ratification admitted to representation in Congress and relieved from military despotism.198 The power of the national government to suppress insurrection undoubtedly carries with it the power to prevent a subsequent outbreak by the maintenance of military government until all danger has passed away.199 The maxim bello the act which recites the consent of Virginia to the formation of West Virgina, 12 St. at L., 633. 192 Act of July 23, 1866, 14 St. at L. 198 See American Insurance Co. v. Carter, 1 Peters, 511; McAllister v. U. S., 141 U. S., 174. 194 See Johnson's veto of the second supplement to the Reconstruction Act, July 19, 1867. 195 Chase's Decisions, p. 132. 196 Mr. Justice Davis, with the con currence of a majority of the Supreme 198 See supra, over note 63; Johnson's message on the admission of Tennessee to representation in Congress, quoted supra, over note 84; and his veto of the second supplement to the Reconstruction Act, July 19, 1867. 199 Stewart v. Kahn, 11 Wall., 493, non flagrante sed nondum cessante is well recognized by international law. 200 But no rule of law or logic can sustain the theory which allows self-government to relinquish constitutional rights while it denies it in all other respects, either within the State or by representation in the national legislature.201 The Reconstruction Acts must consequently be condemned as unconstitutional, founded on force, not law, and so tyrannical as to imperil the liberty of the entire nation should they be recognized as binding precedents. There is much more support for the conduct of both houses of Congress in refusing admission to the delegations from the Southern States till after the ratification of the new amendments and the re-making of their constitutions. In action of that character neither house is bound by rules and limitations such as hedge them in when enacting laws. The jurisdiction is expressly vested in their uncontrolled discretion. And few legislative or administrative, not many judicial officers, feel that, in determining upon a discretionary act, they are bound to follow rules of law which conflict with their views of public policy. There remains, however, another and broader view of the entire question. The experience of eighty years had proved that there was need of an alteration of our Federal system to create citizenship of the United States, and give to those who possessed it rights which the States could not destroy, and which should be under the protection of the Supreme Court of the United States. Few live who would now revoke from its jurisdiction the power to 507; Raymond v. Thomas, 91 U. S., 712, 714, 715; quoted, supra over note 187. 200 Elphinstone v. Bedreechund, 1 Knapp P. C., 316, 360, 361; where this maxim was applied to relieve a military officer from liability for an act in a conquered foreign country not protected from him by any provision of a constitution, although open hostilities had ceased in the vicinity, and the native courts were open at the time. William Lawrence of Ohio claimed authority for the Reconstruction legislation under this maxim (Congressional Globe, 2d sess., 39th Cong., p. 1083). See also the speech of Shellabarger, quoted by Dunning, The Constitution in Reconstruction, Pol. Sc. Quart., vol. ii, p. 598; and the opinion of Attorney-General E. R. Hoar in the Weaver Case, 13 Op. A. G. 59. 201 According to The Republic of Republics, 4th ed., p. 426: "Thaddeus Stevens said there were only two men in all Congress who agreed that these matters were constitutional. In all this business,' said he, 'we act outside of the Constitution."" annul the act of a State as well as the National government, which takes life, liberty, or property without due process of law, or which establishes inequality by statute. The condition, too, of the slaves among their former masters demanded some interposition for their protection; and history has taught that no class with the exclusive right of government can refrain from legislation unfair to those who are disfranchised. That a period of probation, or a gradual admission of the freedmen to the right to vote, would have been better, few can doubt; but, after Lincoln's death, it seemed to the most careful students of the subject, that the choice was peremptory between immediate enfranchisement for all or permanent disfranchisement, without hope of a future right for any. The unwisdom of the disfranchisement of the leaders of the South is most apparent. But when we consider that, after five years of civil strife, in which so much blood and treasure was wasted, the victors did not demand, as an atonement, the sacrifice of a single life not destroyed in battle, or for a violation of the laws of war; and remember, not only the decimations in Rome and the guillotine in France, but the explosion of the Sepoys by the English in India less than ten years before, and the military executions in South and Central America to-day; their magnanimity seems, indeed, without a parallel. The South failed in an attempt to accomplish a revolution for the security of slavery. Their failure was followed by a successful revolution effected by the North,202 which destroyed the institution that had been the canker in the body politic, and so cemented the Union as to make it stronger and more beneficial than before. At the start of secession, the Southern statesmen announced that they would never return without a reconstruction of the Union.203 On their return, they found that a reconstruction had been brought to pass. And their children now admit that what they obtained was better than what they sought.204 202 See Maine, Popular Government, p. 245. 203 Supra, § 36, note 24. 204 The only histories of Reconstruction are by Blaine, in Twenty Years in Congress, vol. ii, which contains the best defence of the action of Congress that could be made, and by Cox, in Three Decades of Federal Legislation. The latter book shows more appreciation of the extraordinary influence of Thaddeus Stevens upon the action taken. A bitter account of some of the events, written from th Con § 39. Seat of Sovereignty in the United States. According to the doctrines of jurisprudence which are usually accepted, there is a sovereign power in every form of government, incapable of control by law, every act of which has legal efficacy.1 The soundness of this position has in later years been impugned,2 and the writer has expressed his opinion on the subject in another place. The question, however, which is more abstract than practical, seems to belong rather to the domain of jurisprudence than to that of constitutional law, and it will not be discussed in the present work. Under its influence, before the Civil War, the disciples of the school of extreme State rights argued that because the several States were termed sovereign their powers were illimitable, and included the rights of nullification and secession. Similarly influenced since the restoration of peace, later writers have seemed to contend that there are now no limits to the powers of the United States, except the express prohibitions in the Constitution.5 Each of these dogmas is without support in precedent. There are certain powers which are the usual attributes of sovereignty and these are apportioned between the United States and federate point of view, is by Davis, Rise and Fall of the Confederate Government, vol. ii, pp. 718-763. McPherson's History of the Reconstruction is in no sense a history, but a very valuable compilation of the documents and important facts. The student should also consult the debates in Congress as well as the newspapers of the time, and the testimony taken before the Joint Committee on Reconstruction, as well as that taken before a number of subsequent committees of Congress. There are several valuable monographs; amongst them Allen's History of the Administration of Governor Chamberlain in South Carolina; and The Brooks-Baxter War in Arkansas, by John M. Darrell. A full and impartial history of the period remains to be written. § 39. 1 Grotius, Jus Belli et Pacis, Liber I, c. 3, c. 7; Hobbes, Works, vol. ii, p. 69; Austin, Lectures on Jurisprudence, vol. i, p. 171; Holland, Jurisprudence, chap. iv, 2d ed., pp. 39–43. 2 Maine, Early History of Institutions, Lecture xiii. 3 The Subjection of the State to Law, American Law Review for 1886, p. 519. 4 See the Republic of Republics, by B. J. Sage; Stephens, Constitutional View of the War between the States; Calhoun's Works; Davis, Rise and Fall of the Confederate Government, vol. i, and other authorities cited in this chapter, supra. 5 See John C. Hurd, The Theory of our National Existence; and a pamphlet by the same author. Pomeroy, Constitutional Law; Tiedeman on Constitutional Law. their component members. But the limits of each are prescribed by the Federal Constitution; and there are certain powers which that instrument withdraws from both. The ultimate right of sovereignty, which can remove all barriers to accomplish legally its wishes, if it exists at all in the United States, rests in the people of three-fourths of the several States acting through their legislatures or conventions with the previous consent of two-thirds of both houses of Congress, who may amend the Federal Constitution. But even they are forbidden to deprive any State, without its consent, of its equal suffrage in the Senate.9 § 40. Sovereign Powers of the United States in General. The powers of the United States are divided into two classes those exercised beyond their borders and those exercised within their territorial jurisdiction; and these again are subdivided into two, those within the Territories and the District of Columbia and those within the several States. In all external relations and transactions with foreign nations, the sovereignty of the United States is absolute except in so far as it is limited by the express language and implied restrictions of the Constitution. That instrument expressly grants to Congress the powers to regulate commerce with foreign nations, to regulate the value of foreign coin, to define and punish piracies and felonies committed on the high seas and offerises against the law of nations, to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water;1 to the President the power to receive ambassadors and other public ministers; 2 to the President and 6 McCulloch v. Maryland, 4 Wheaton, 316, 402-405; Cohen v. Virginia, 6 Wheaton, 264, 380-382; Tennessee v. Davis, 100 U. S., 257, 272; Pollock v. Farmers' Loan and Trust Co., 157 U. S., 429, 556. 7 Constitution, Article I, Sections 9 and 10. 8 Constitution, Article V; Calhoun, Works, vol. v, p. 36; Mr. Justice Bradley, in Hans v. Louisiana, 134 U. S., 1, 11; Chief Justice Fuller in Pollock v. Farmer's Loan and Trust |