the jurisdiction of courts of equity.176 In the famous case of McCardle, an appeal was taken to the Supreme Court from the decision of the Circuit Court of the United States upon a writ of habeas corpus obtained by a prisoner held for trial by a military commission in Mississippi upon the charge of publishing articles in a newspaper which impeded the reconstruction of the State and incited a breach of the peace; and the question of the constitutionality of the reconstruction acts was argued in 1868 by the most distinguished lawyers in the country.177 The majority of the Supreme Court were of the opinion that at least so much of the act was unconstitutional as deprived citizens of the United States of the right to trial by jury. They hesitated, however, to engage in a conflict with a co-ordinate department of the government upon a question of so great political importance; and, consequently, against the protest of two of their members, 178 postponed their decision until the succeeding term in order to afford Congress an opportunity to repeal the statute which gave them jurisdiction. This was promptly done, so that the appeal fell with the law.179 McCardle was, however, discharged.180 In the case of Texas against White,181 the validity of the acts of the government of Texas, which was recognized by the President and subsequently set aside under the Reconstruction acts, was brought before the Supreme Court for decision. The court held that neither the ordinance of secession, nor anything which had subsequently occurred, had put Texas out of the Union. 182 That the government of Texas, during the war, had been revolutionary and illegal, and its acts could have no more effect than those of a de facto government, which, in so far as they related to the maintenance of peace and good order among the citizens of the State, would be respected; but that all acts in aid of the rebellion, “ or in 176 Mississippi v. Johnson, 4 Wall., 475; Georgia v. Stanton, 6 Wall., 50; Georgia v. Grant, 6 Wall., 241. The subject will be discussed subsequently in the chapter on the Judiciary. 177 Ex-parte McCardle, 6 Wall., 318; S. C., 7 Wall., 506; Cox, Three Decades of Federal Legislation, p. 548. For Field's argument, see his Works, vol. i, p. 518. 178 Justices Field and Grier. Their protest is printed subsequently in the chapter on the Judiciary. It may also be found in Field's Works, vol. i, p. 518. 179 Ex parte McCardle, 7 Wall., 506. 182 Ibid., p. 726. tended to defeat the just rights of citizens, were void." 183 That the action of the President was only provisional. That the acts of the government which he recognized were valid before Congress interfered,184 and that Congress had the exclusive right to determine whether any government there existing was a republican government which should be recognized by the United States. 185 The court evaded a decision upon the constitutionality of the Reconstruction acts, saying: "Nothing in the case before us requires the court to pass judgment upon the constitutionality of any particular provision of those acts." 184 "We do not inquire here into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress. 186 There are, however, two dicta by Mr. Justice Swayne in other cases to the effect that. "The National Constitution gives to Congress the power, among others, to declare war and suppress insurrection. The latter power is 183 7 Wall., 733. 184 Ibid., 730. 185 The new freemen necessarily became part of the people, and the people still constituted the State, for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State thus constituted which was now entitled to the constitutional guaranty of a republican form of government." "There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could properly be held, it was necessary that the new Constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State. In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done and no authority exerted which is either prohibited or unsanctioned by the Constitution." Chief-Justice Chase in Texas v. White, 7 Wall., 700, 728, 729. 186 Ibid., p. 731. In a subsequent case where the validity of an order by a district commander, setting aside the decree of a State court, came in question, the Supreme Court held the order void as not authorized by the act, without passing upon the power of Congress. Raymond v. Thomas, 91 U. S., 712. not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently rightful authority to guard against an immediate renewal of the conflict, and to remedy the evils growing out of its rise and progress." "187 And speaking of a constitution adopted under the coercion of the reconstruction legislation: "Congress authorized the State to frame a constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government and is concluded by it." 188 The validity of the acts of Congress is, therefore, open to investigation; and now that more than a quarter of a century has since elapsed, and what they accomplished cannot be disturbed, it would seem as if the question were capable of a dispassionate consideration. In view of the language of the Constitution, the decisions of the courts on cognate questions and the action of Congress in other respects towards the States which were the seat of the insurrection, it seems impossible to find any justification for them in law, precedent, or consistency. The war was instituted against the South upon the theory announced by the President 189 and both houses of Congress, 190 that it was not the States, but a portion of their inhabitants, who had rebelled. The remanence of the States in the Union was asserted in both the statutes during the war imposing upon them a direct tax,191 and those since the 187 Raymond v. Thomas, 91 U.S., 712, 714, 715. And to the same effect in Stewart v. Kahn, 11 Wall., 493, 507. See also Gunn v. Barry, 15 Wall., 610, 623. In Marsh v. Burroughs, 1 Woods, 463, 470-472, Mr. Justice Bradley held at circuit, that the validity of the reconstructed Constitution of Georgia was a political question as to which the courts must follow Congress, and that "some sort of rehabilitation was necessary." 188 White v. Hart, 13 Wall., 646, 649. 189 See Lincoln's proclamation calling for troops, supra, note 1. 190 Supra, over note 14. See The Amy Warwick, 2 Sprague, 123, 143, 150, 160; s. C., 1 Fed. Cas., pp. 719, 817. 191 12 St. at L., 295, 422. See also 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.' 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 " 196 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. 193 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.'" |