Page:Essays on the Civil War and Reconstruction.djvu/144

 quate protection for life or property in the rebel states in 1867 constituted a new "case of rebellion or invasion," which justified the establishment of martial law. But on this supposition there would be a direct collision between Congress and the judiciary at another point. In the case of Milligan the Supreme Court declared with unmistakable emphasis that "martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." Yet in the states which were relegated by Congress to the unlimited dominion of officers "not below the rank of brigadier-general," the ordinary courts, both local and federal, had transacted their regular business for nearly two years.

In reference to the third and perhaps the most important feature of the Reconstruction Acts, the legislature and the judiciary are in harmony, though the difficulty of reconciling their doctrine with the earlier interpretations of the constitution is insuperable. Congress enacted that new state governments should be organized by a political people differing in toto from that which had formerly been recognized as the basis of the commonwealths. The leaders of the Southern whites were excluded from any part in the reconstruction; the freedmen were awarded the ballot, and were relied upon to accomplish the formation of state governments. Two questions arose in connection with these acts: first, by what authority did the national legislature