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organized communities, Congress could and must recognize the existence of that war, and apply itself by the means belonging to war to the vindication of the national authority, the preservation of the national territory, and the restoration of a republican government under the national Constitution in each of the rebellious States, as was said by the Supreme Court in The Prize Cases 2 Black, 635, 678. It is a proposition never doubted that the belligerent party, who claims to be sovereign, may exercise both belligerent and sovereign rights. The territory possessed by the rebels might lawfully and constitutionally be treated by the United States as enemies' territory, in the language of the court in the same case, and persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners. They have cast their allegiance and made war on their government, and are none the less enemies because they are traitors. Where all lawful governments have been extin guished by the rebellion on the theatre of active military operation, where war really prevailed, there is a necessity to furnish a substitute for the civil authority thus overthrown to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. The right to govern by military law under such circumstances was fully conceded in the opinion of the Supreme Court of the United States in Ex parte Milligan, 4 Wall. 2, 127. The test is there suggested that the right to govern by military power depends upon the fact that the courts are actually closed, and that it is impossible to administer criminal justice according to law. But while the war continues, although military power may be the only government in territory held by force of arms, the military commander may make use of such local tribunals as he may find it convenient to employ in subjection to his paramount authority. It then remains to consider, 1st, whether the State of Texas has been, during the Rebellion, so deprived of all constitutional and lawful government as a State, and so in armed hostility to the Government of the United States, as to be subject to military law when the j>ossession of her territory was regained by the military of the United States; and, 2d, whether the right to hold and govern the State by military power is terminated. To the first question there can be but one answer. In the language of Chief Justice Chase, in Texas v. While (2 L. T. Cts. Rep. 79 ;) [3 Am. Law Rev. 765], decided at the present term of the Supreme Court, " No one has been bold enough to contend that while Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens were entitled to seats in Congress; or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequence of rebellion."
The second question is one of more importance and difficulty. Having suppressed the Rebellion so far as it was maintained by an armed force, it became the duty of Congress to re-establish the broken relations of the State with the Union; and the same authority which recognized the existence of the war is, in my judgment, the only authority having the constitutional right to determine when, for all purposes, the war has ceased. The rights of war do not necessarily terminate with the cessation of actual hostilities. I can have no doubt that it is competent for the nation to retain the territory and the people which have once assumed a hostile and belligerent character within the grasp of war until the act of restoring the relations of peace can be accomplished, and that it is for Congress, the department of the National Government to which the power to declare war is intrusted by the Constitution, to determine when the war has so far ended that this work can be safely and successfully completed. The Act of March 2, 1867, is, in my opinion, a legislative declaration that in Texas the war which sprang from the Rebellion is not, to all intents and purposes ended, and that it shall be held to continue until, in conformity with the legislative will, a State government, republican in form, and subordinate to the Constitution and laws of the United States, for which the act makes provision, shall have been re-established. It is true that in several acts of Congress the suppression of the Rebellion and the end of the war have, in express terms, or by implication, been recognized; but it will be found, on examination, that these phrases have been used in regard to special subjects, which does not seem to me inconsistent with the proposition that for some purposes the rights of war are not ended, while, in respect to captured and abandoned property, a limitation of the right to commence suits in the Court of Claims, dating from the end of the Rebellion, has been fixed by statute; and for the purpose of settling the question of the pay of officers in the volunteer army, the date of the President's proclamation, declaring the insurrection at an end, has been adopted to interpret the precise "close of the war." It does not seem to be inconsistent with either of these enactments that Congress should declare that the States, whose civil governments have been destroyed, should continue under military authority until such governments could be restored. Every act of Congress, too, is presumed to be constitutional unless the contrary plainly appears. It is also presumed that Congress will provide for the restoration, through constitutional governments, of the rebellious States, as speedily as in its judgment public safety will allow; but until civil authority is restored, and the rights of persons and property can be protected in the region which has been the theatre of war by organized governments, the direction by Congress to employ a military force to give that protection and to preserve the peace would seem to be the only alternative with anarchy. It appears by the papers in the case that the trial of Weaver before the military commission was fairly and carefully conducted, and that the murder of which he was convicted was wanton and cruel. A freedman who had been at work for Weaver, and had chosen to leave his employment to go and work for another man, went to him in the field, near his house, in the morning, to ask for the wages that were due him. Weaver seized an ox-bow, and beat him severely with that. He then sent his hired man to his house for a doublebarrelled gun, loaded with buckshot, and on his return with it, shot the freedman through the head, killing him instantly. There appears to have been neither provocation nor resistance. This atrocious act was committed in the sight of the wife of the man murdered, who stood by her own door. The finding of the commission has been approved by the military commander, and has been certified to be regular and proper by the Judge Advocate General. I find no reason in law for the President's withholding his approval. — [Attorney General Hoar, in answer to Secretary of War, May 81, 1869.]
United States Cmcurr Court. —In re Hastings. Proctor stricken from the Rolls. W. Hastings, proctor in admiralty, brought a suit in the United States District Courfr against the ship Gentoo, claiming damages for alleged ill treatment. The case was tried before Judge Hoffman, who delivered an opinion, and entered a decree dismissing the libel. An appeal was taken by Mr. Hastings to the Circuit Court, and the decree of the District Court was affirmed by Judge Field. Under these circumstances, Mr. Hastings gave a notice of a motion to be made before Judge Hoffman, the result of which was the following order: 7—
A rule having been heretofore entered requiring Mr. Hastings, a proctor of this court, to show cause on this day why he should not be stricken from the rolls of the court, or otherwise proceeded against as for contempt; and the said Hastings being here present in court, and being called upon to answer said rule, admitted and avowed that he filed with the clerk a certain paper purporting to be a notice of motion, which paper is as follows : —
"In the Circuit Court of the United States for the District of California. — Sigmund Austin et al., Libellants and Appellants, v. the ship Gentoo (L. Freeman, Claimant), Appellee. — In Admiralty. You will please to take notice that as soon as appellants can obtain an impartial hearing I will move the court to set aside the decree made by the Circuit Court in the above-entitled cause, and grant a hearing thereof, on the following grounds; namely: First. That the decision is clearly against ^evidence. Second. That the decision is clearly against law. Third. That the decision was made without examination of the pleadings, proofs, further proofs, or written arguments in said cause, or the questions of law raised and submitted therein for consideration and adjudication, and without due or any consideration or deliberation. Fourth. That said decision is the result of either prejudice or corruption, and made in wilful violation of a known duty. And you will further take notice, that on the hearing of said motion the pleadings, proofs, and further proofs adduced in said cause and the opinion of the court below, the brief or written argument submitted by appellee, and the brief or written argument submitted by appellants, will be read and referred to on the hearing of said motion and affidavits to be filed.
"W. W. Hastings, Proctor for Appellants.
"June 23d, 1869. "To Messrs. Casserly & Barnes, Esqrs., Proctors for Appellee."
And the said W. Hastings having also admitted that he had served a copy of same on W. H. L. Barnes, proctor and advocate of this court, and thereupon having asked the court twenty days' time to prepare his defence and to make good and substantiate the charges and statements contained in said notice, which was by the court refused, and it appearing from the files of this court, and also by the confession of the said Hastings, that he had filed and served the paper hereinbefore set forth — it is therefore adjudged by the court that the said W. Hastings is guilty of a contempt of this court; and it is ordered that the name of the said W. Hastings be stricken from the roll of attorneys, counsellors, solicitors, proctors, and advocates of this court, and this judgment and order be entered on the minutes.
Since 1854, there has been but one nisi prius court of general jurisdiction in Connecticut, — the Superior Court; although county courts, for the trial of cases involving small amounts, had been previously maintained almost since the foundation of the colony. For several years past, the dockets of the courts in the principal counties have been so large, that a contested suit was rarely tried on the merits until three or four years after its commencement; and the last legislature therefore created a Court of Common Pleas for Hartford and New Haven counties, having exclusive jurisdiction of all cases not within the cognizance of justices of the peace, and not involving over §500.
United States Circuit Court. — At the April term, the case of Curtis v. Smith was tried before Shipman, J., on an issue closed to the court. A., who was domiciled in Illinois, died leaving a fund to B., in trust, to apply whatever of it might be necessary for the maintenance of C. during his minority, and pay the residue to him on his coming of age, or, should he die in infancy, then to pay it to D. Pending the settlement of A.'s estate in Illinois, B. died; whereupon the Supreme Court of New York, which State was the domicile of B. and C., appointed E. trustee in B.'s place to execute the trust created by A.'s will in favor of C. E. received the fund from A.'s executor, converted it into money, removed to Connecticut, and there died; whereupon the same court in New York appointed the plaintifT trustee to execute the trust created by A.'s will in favor of C., and he brought the present action of account against E.'s administrator. Held, in rendering judgment for the defendant, that the administrator was not liable to any one in an action at law, cases of this nature, respecting trusts, being exclusively cognizable in equity; that he would not be liable to the plaintiff, even in equity, since the trust was an indivisible one, while the plaintiff appeared only as the trustee of C., without reference to the rights of the remainder-man; that, even were the plaintiff clothed by his New York appointment with the full trust, in favor of all the parties in interest, or were he to be considered as having been thereby constituted C.'s guardian, he could maintain no action in the courts of Connecticut, since his title would be derived merely from the aet of the law as administered in a foreign State, which would put him in no better position than a foreign administrator; and that the proper course to recover the fund was, having first proved the will in New York, to have a trustee appointed there to execute all its trusts regarding the fund; next to prove the will in the Court of Probate for the district in which E. was domiciled when he died, and then apply to the proper court in Connecticut to appoint the New York trustee a trustee of the same trust under the laws of Connecticut, which being done, he could recover the fund by a bill in equity, and remove it to New York.
Semmes, Administrator, v. City Fire Ins. Co. The defendants issued a policy of insurance against fire to the plaintiff's intestate on buildings in Mississippi. Among the conditions of the policy were, that no suit on it should be brought before sixty days after proof of the loss had been furnished to the defendants, nor more than one year after the date of the loss. A total loss occurred on Jan. 5, 1861, and proof of loss was duly furnished to the defendants on Feb. 11, 1861. The amount of the policy being unpaid, the plaintiff, as administrator, sued the defendants. The suit was begun Oct. 31, 1866. The case was tried before Shipman, J., without a jury. There were other questions in the case, but the decision turned on the point whether the suit was brought in time. The court held that, if not before, at least from Aug. 16, 1861, when the President, in pursuance of the Act of Congress of July 18, 1861, by proclamation, formally declared the inhabitants of certain States, including Mississippi, in insurrection, and prohibited all commercial intercourse between them and the other parts of the United States, the right to sue on this contract was suspended, and the assured was under a disability to sue. It therefore became essential to determine whether this disability still existed, and, if it did not exist, when it was removed. The plaintiff contended that this disability was removed and the war ended on the 2d of April, 1866, the date of the President's proclamation that war was at an end, and that it did not end before that date. The defendants contended, on the other hand, that the war ended, so far as the interdiction of commercial intercourse went, on June 13, 1865, when the President by proclamation appointed a provisional governor for Mississippi, and directed the United States courts to be held in the State.
On this question the court says: —
"Now, it must be remembered, that though this was a war between belligerents, attended while it continued by those legal consequences which public law always attaches to all legitimate warfare, yet it was a civil war in which the revolted party was defeated, and its organization as a dt facto government under the name of the Confederate States of America, politically annihilated. No treaty of peace in the ordinary sense of that term could be negotiated, as but one of the parties which had waged the war was in existence as a treaty-making power at its close. Therefore no such treaty has drawn the line where the war ended, and suspended contracts revived. We must, therefore, look to the acts of the only surviving party to ascertain when those disabilities, legally imposed by the state of war, ceased. It is hardly necessary for me to say that the principle here stated lends no support to the doctrine put forth in some quarters, and which that distinguished jurist, Mr. Justice Sprague, characterized as a "grave and dangerous error," — that the suppression of the Rebellion conferred upon the United States the rights of conquest, — the right to treat the States included in the Rebellion as foreign territory acquired by arms, and permanently divest them and their inhabitants of all political privileges. That notion has nothing to do with the point now under consideration. The United States, in suppressing the Rebellion, destroyed the political organization known as the Confederate States, and not the individual States as political communities. But though the States remained after the contest ended, the belligerent power known as the Confederate States which had represented them in the war, disappeared at its close. Neither of the States which remained had the power, or attempted, to negotiate a treaty of peace with the United States. In determining, therefore, when the rights, suspended by the war, revived, we must look to the action of the only power in existence which could effectually deal with that subject. This power was the Government of the United States.
"It is a settled rule with the courts of the United States, in ascertaining whether or not war exists, to look to the action of those departments of the government to which that subject is confided by the Constitution. Courts never inquire, when investigating questions of this character, when active hostilities ceased. The termination of war, and the establishment of the relations of peace, are political acts, to be performed exclusively by the departments of the government to which political powers and duties are intrusted. The action of these departments, when within the authority conferred by the Constitution, is conclusive and binding on the courts as well as citizens. When war has existed between the United States and a foreign country, its termination is easily ascertained by a reference to the treaty of peace which follows it, and which is consummated by the President acting by and with the advice and consent of two-thirds of the Senate. As no such treaty did, or could, mark the close of this civil war, we must look to the action of the President or Congress, or both, and from that action ascertain when the war ended, and when the legal consequences which flowed from it ceased to act in any given case.
"I have already shown that by the rules of public law universally recognized among civilized nations, as well as by the decisions of our own courts, the existence of this war suspended all contracts between the citizens of the respective belligerents, entered into before it commenced. It rendered for the time being, all commercial intercourse between the citizens of the two sections unlawful, and converted them into enemies. But in addition to this, Congress passed an act July 13, 1861, authorizing the President in certain cases, by proclamation to declare the inhabitants