THE SUPREME COURT AND THE UNION.
IF the law of this country had provided that no sort of justice, military or otherwise, should be administered to Englishmen resident in Ireland without the consent of a majority of the Irish, and that there should be no change in this law without the consent of a minority of the Irish too large to obtain, what would Englishmen do ? Probably break the law ; or, if there were any shadow of doubt about the law, and any chance that political motives had influenced and would influence its interpretation, get judges appointed with a very strong leaning in favour of deciding that justice for Englishmen in Ireland in some form or other was legal as well as right; Would anybody dream of England, with ample power to enforce her will, putting up passively with the decision that the law, however unjust, was rightly interpreted, and the Constitution, howeverunjust, was unalterable except by gaining the assent of a number of men determined not to give that assent? Now, this is the precise position of affairs in America with reference to the administration of justice at the South. The Supreme Court has decided, by a majority of five to three, that all military tribunals for trying civilians are absolutely and universally invalid, whether in time of war, and in the seat of war or not. The Chief Justice and two of his colleagues thought that Congress had power to decide that any part of the Union was in a condition too unsettled and disloyal for the jurisdiction of ordinary courts of justice, and that, in these, military tribunals would, for the safety of the country, be legal. But the majority of the judges, from whom there is no appeal, declared that military tribunals for the trial of civil offences were utterly unconstitutional and their sentences invalid, so that by the same rule tens or hundreds of thousands of persons, or their families and re- presentatives, will now have actions for false imprisonment and other illegal punishment against the military authorities of the United States. Now, what this means is, that the civil and criminal Courts of the Secessionist States,—Courts which, as it is well known that they are quite overridden by political prejudice and colour prejudice, are simply Courts of injustice, not Courts of justice,—Courts which decide, entirely without relation to facts, for secessionists against loyalists, for whites against negroes,—are absolute, except in the few cases where there is an appeal, and wealth to press it, to the Supreme Court of the United States, —a case in which justice might be declared, though scarcely done, if the subject-matter in dispute were deep in the thick of a hostile population. Nor- therners in the South, coloured men in the South, worst of all, freedmen in the South, have therefore no hope or chance left of justice under the Constitution, if this be constitutional law. There is no escape from it. The Supreme Court says mili- tary interference is unconstitutional; and the Constitution can- not be altered without a majority of three-fourths of the States. Nearly one-third of the States are disloyal and have no inclination whatever to agree to any constitutional change diminishing their power to make the " damned Yankees and niggers " feel their hatred. If, therefore, the Constitution be rightly interpreted, and the Secessionist States have, as they certainly have, the minority requisite to prevent a change in the Constitution, the only alternative left to the North is either to acquiesce in the murder, robbery, and general violence done with impunity upon the loyalists (black or white) in the South, or else' to break the law or Constitution in some more or less conspicuous way. We do not doubt, as we have said before, that, were it our own case in Ireland, we should call out for common sense and common justice where- ever we had power to enforce them, even rather than the Con- stitution. There is something at once silly and mean in let- ting any Constitution so override the end of all Constitutions, that civil order and civil liberty cannot be secured for those citizens who deserve to enjoy both ; silly, because no State in which loyal and orderly men cannot live unmolested is likely to have even a loyal and orderly minority long ; mean, because to abandon those who have been fighting your battles for you, at the very time and in the very place where they are most completely at the mercy of their enemies, is a mean and contemptible thing. But even this is not all. The Supreme Court,—for anything we know to the contrary, with the strictest legal accuracy,—has decided that the test oath,' the oath of loyalty administered by law,—Congress-made law,—to all the inhabitants of the revolted States who wish to return into the enjoyment of their political rights, is itself illegal. Not only, then, is it illegal to protect loyal men's lives and property in places where there is no justice to be had from the State Courts, but it is illegal also to take any guarantee for the loyalty of the politicians who are to assist in the work of reconstruction. The Supreme Court has now only to decide that Congress is itself illegal without deputies from the rebel States, and that the war for the Union was throughout illegal,—for which, or at least for the illegality of " the war power," as it was called, there might be at least as much said as for the illegality of the test oath and of military tribunals,—and it will be quite clear that the whole work of the people of the United States for the last six years has been one long illegality from beginning to end. We almost wish the Supreme Court would decide this, for then things would be seen in their true light. The people would perceive that the Constitution was never meant to provide the way out of a great rebellion, and that it must, —even by an exercise of revolutionary force, if needful,—be exchanged for one adequate to the great task of reconstruct-. ing and ruling States which, whether they like to admit it or not, are practically territories reconquered for the Union.
Nothing can be more absurd than to try and restore to loyalty and to a policy of freedom, States which are to be given up soul and body to the direction of the present ruling caste at the South. Yet without the test oath, without the Civil Rights' Act, which is simply ignored, without military repression of any kind, the Southern society is clearly in a condition far more irri- tated against Yankee ideas and negro freedom than before the war. The Southerners are now mortified, revengeful, and have full power to vent their spite with impunity, so long as they stop short of formal war. Negro-murderers are simply heroes ; panegyrists of secession, and all that secession did, alone have a chance of election to the State legislatures, or of appointment to judicial offices ; the whole education of the South at present is an education of bitterer animosity than ever against all the principles that have triumphed. To see that this must not be suffered to go on is easy enough. To see how to remedy it with a Supreme Court that can only interpret the Constitution, and a Constitution that never contemplated or pro- vided for such events as these, is far more difficult. Whatever is done must be in spirit, if not in letter, revolutionary ; and per- haps the less it pretends to disguise itself under constitutional forms the better. We can imagine only two remedies ;- first, the manufacture and admission of two or three small States, without any sufficient population to entitle them to be admitted as States in ordinary times, by which the requisite majority for a constitutional amendment would be obtained without the concurrence of the South. This would, no doubt, be as revolutionary as any measure. The other alter- native would be the removal of the President on impeach- ment, and the appointment in his place of a successor who would add to the Supreme Court two or three more judges of like views to those of Chief Justice Chase, for the express purpose of declaring the military government of the South constitutional, so long as it is in the eyes of Congress neces- sary to the welfare and safety of the Union. Either of these measures are revolutions hardly disguised. But so was the war power.' And if it were wise and right to accept a revolution in disguise, in order to kill and conquer the open enmity of the South, it is still more wise and right to com- plete the difficult work once begun by further revolution in disguise or open, it matters not, and not to leave half done that which had better not have been done at all, than half done.
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