New-York tribune., 1902-07-16

Burgess. n
pp. xiv. 5a2 Charles Scrfbner's Sons.
Professor Burgess is a believer in the extreme
national theory of the American Constitution.
In these three volumes he interprets the his
tory OF the United States during the period that
put its nationality to the supreme test rather
by the light OF his own scheme of political sci
ence than by settled rules OF constitutional law.
He makes no doubt that the secessionists were
absolutely wrong legally and morally. Their
movement, in spite of all their reasoning about
State rights. simple rebellion, unprovoked
by any such oppression as can alone JUSTIFY
revolution. Real reunion only be secured
through the sincere acknowledgment by the
South that secession was an error, as well as
a failure. Likewise. the North must acknowl-
edge that its method of reconstruction was
bIunder that came little short Of crime. The
root of the error underlying secession our au-
thor holds, was the claim that the constitution
made the Union. 1.-THE truth is" he declares
'that the Union made the constitution, and that
the physical and clinical conditions of our terri
tory and population made the Union" 1t did
not spring from the resolutions of a conven-
ton The supreme principle back Of the consti-
tuition and the supreme law within ii is the
nation, which the legal organization merely in
serprets. ANY other view of these relations is
unspiritual is purely arbitrary and mechanical"
leading "to dissolution, anarchy and ultimate
barbarism."
From this point OF view the indecision OF the
Union men in 1861 naturally seems astonishing.
After the event, with nationality vindicated, ii
difficult to realize the confusion Of the lead
ers of the North, who were willing TO go to
all lengths for peace. even to concede the I'M
possibility of holding the Union together by
force, in the vain hope of conciliating and dis
er7ring the secessionists. Lincoln himself was
evidently not entirely clear as to the national
IiS nITG
concerning the extent of his powers were de-
veloped by necessity, and indeed. he never fully
outgrew the doctrine of State rights which held
Sway to a greater or less extent over all parties
and all branches of the government from Jef-
ferson's administration to the Civil War This
Is shown by his policy OF reconstruction. How
far Lincoln and his advisers were at fault and
how fsr they were merely true TO American in
stitutions as they then existed. instead Of using
their war powers TO transform the government
10 accord with new political theory, is an in
teresting question
Lincoln seems never to have doubted the
right Of the government to maintain itself,
though In his inaugural address he was con-
ciliatory. and disavowed any immediate inten-
ton Of sending strangers to I'LL the federal Of
nces in the disaffected States. Professor Burgess
thinks the President did not realize the enormity
Of the offence of the border State Governors, |
the troops under their command, and who as
Euned to declare their States neutral. 1t is |
quite as probable that Lincoln had enough other
offences to deal with. and preferred to ignore |
the pretence of neutrality rather than risk pre-
cipitating active hostility in that quarter. When
the time came to assert federal authority he
was not slow TO it to the utmost in the
North as well as the South. He suspended the
writ Of habeas corpus executive act, ignor-
+ha+C Con-
gress alone had that power; and without waiting
for Congress to put the government war
footing he acted for months practically as a |
military dictator On assembling, Congress |
legalized his acts. The author thinks that Con- |
eress and the President, acting together, constt-
tutionany possess in time Of public danger |
power TO suspend the ordinary law. He vigor- |
ously combats the notion that they acted on !
the principle that necessity knows no law in |
preserving the Union. They did things which |
under ordinary conditions would have been un-
constitutional, but they had the constitutional
right TO do them IN periods Of extraordinary |
danger.
In enforcing martial law in the North the |
President certainly went beyond the warrant |
of the constitution interpreted by the Su- |
preme Court After the war, in parte Milligan |
IL ruled by a bare majority that arrest and {
trial under martial law in loyal region, where |
EIe regular COURTS were OpSUI was llleSdl. Inc |
government had dealt thus with many Copper |
heads, and Professor Burgess says: There is |
little doubt that in spite OF the opinion Of the |
court, the practices Of the administration would |
be repeated under like circumstances. The prac- |
tees Of the administration are, therefore, to be |
considered as the precedents OF the constitution
in civil war; rather than the opinion of the |
court" That is strong doctrine, and even the !
frmest believer in the governments national |
character may be pardoned for not accepting |
the theory that an arbitrary act. rather than a |
decision Of the Supreme Court overruling It, /
makes constitutional precedent. Perhaps the |
constitution ought to be different Possibly the |
court might in the face of a new necessity rule !
ptherwise. Possibly force would in crisis set |
sside law, and be morally justified in so doing |
But where to look for constitutional |
principles if not TO the Supreme Court?
After taking this high ground to the scope |
pf the powers, it is somewhat surprising to |
find Professor Burgess discounting the perma- |
nent legal effect OF the Emancipation Procama- |
tion. He holds that IL was entirely justified |
morally and legally. AS the military COM
Snander the President could confscate enemies
property and fix the status of persons within |
the rebellious territory. Nevertheless, that die
tatorship temporary. THE freedom ac- |
Quired by the slave In consequence of the Presi-
dents act could continue legally, after the sus-
pension Of the war powers, only by means of |
some constitutional provision or of some legis- |
lative act warranted by constitutional provi- |
sion. 1t is. of course, true that the military au-
thority is temporary, and that with peace re-
stored the Presidents power to fix the status of
the negro ceased. It is not clear, however |
that the negro was thus legally remanded back
O slavery. Peace declared the mower to con6s-