Page:Essays on the Civil War and Reconstruction.djvu/149

Rh lations of the civil war and reconstruction will be construed in accordance with this theory. With its political bearings, however, the court has rightly disclaimed all connection. The question as presented to the judiciary was: Has such and such a state ever ceased to be a state of the Union? For answer to this interrogation, the court declared its obligation to follow the political departments of the government. A review of the acts of these departments failed to reveal an express declaration that any state had ceased to exist. The process of reconstruction presented many situations which could be explained as readily by assuming a revolution to have occurred as by strained constructions of the constitution. It was the duty of the judiciary, however, to preserve above all things the continuity of legal development. This duty was fulfilled, notably, in the elaborate argument, but very doubtful logic, of Texas vs. White. Private rights must be determined, then, on the theory that a state cannot perish. With political relations the case is different. Only the tension of a great national crisis is likely to call for a review of the Reconstruction Acts by the legislature; yet in such an emergency these precedents of political action may and probably will be regarded as much more consistent with the views of Sumner and Stevens than with the theory of forfeited rights.