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of a State in insurrection against the United States, whereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States should become unlawful. In pursuance of this statute the President, on the 16th of August, 1861, issued his proclamation declaring the inhabitants of certain States, including Mississippi, in insurrection against the United States. By force of this proclamation, then, and the statute authorizing it, as well as by the legal effect of the war then existing, all pre-existing contracts between the people of the respective belligerents, including the right to enforce them by judicial proceedings, were thenceforth suspended. In progress of time hostilities ceased, and the Executive Department of the United States commenced a series of acts recognizing a change in the relations of the Government towards the inhabitants of the States lately in rebellion. May 22,1865, the President issued a proclamation raising the blockade of most of the closed ports, and removing 'all restrictions upon trade heretofore imposed in the territory of the United States east of the Mississippi River, save those relating to contraband of war, to the reservation of the rights of the United States to property purchased in the territory of an enemy, and to the twenty-five per cent upon purchases of cotton.' The same proclamation declared that all provisions of the Internal Revenue Law should be carried into effect by the proper officers.
"May 29, 1865, the President proclaimed amnesty and pardon to all persons in the late revolted States, except certain specified classes, with restoration of all rights of property except slaves, and in cases where legal proceedings had been commenced for the confiscation of property of persons engaged in rebellion, on condition that they should take and subscribe a certain oath.
"On the same day he issued a proclamation appointing a Provisional Governor for North Carolina, and prescribing his duty and authority.
"June 13, 1865, he issued a similar proclamation relating to Mississippi.
"On the same day he issued a proclamation appointing a Provisional Governor over Tennessee, and declaring, among other things, 'that all restrictions upon internal, domestic, and coastwise intercourse and trade, and upon the removal of the products of States heretofore declared in insurrection, reserving and excepting only those relating to contraband of war, as hereinafter recited, and also those which relate to the reservation of rights of the United States to property purchased in the territory of an enemy, heretofore imposed on the territory of the United States east of the Mississippi River, are annulled, and I do hereby direct that they be forthwith removed.' The other provisions of this proclamation it is not necessary to notice here.
"April 2,1866, the President issued a proclamation formally declaring the insurrection that had existed in certain States, including Mississippi, at an end, and to be thenceforth so regarded.
"It should be remarked that there was no executive declaration that the insurrection was ended, before that of April 2, 1866, in any State except Tennessee. On the 13th of June, 1865, he did, in the proclamation already cited, declare it terminated in the last-named State. In a proclamation of the same date relating to Mississippi, and in the one of May 29, 1865, relating to North Carolina, he spoke of the armed forces of the Rebellion as having been 'almost entirely overcome.'
"We must now inquire into the legal character of the proclamations of the President restoring commercial intercourse to and with the States which had been engaged in the Rebellion, and the rest of the United States. And, first, as to his authority to issue such proclamations. I think there can be no doubt on that point. The Supreme Court of the United States recognized the power of the President to, in effect, declare the inhabitants of the disaffected States in a state of insurrection as early as April 19,1861, when he set on foot the blockade of certain ports, including those in Mississippi vol. Iv. 12
(The Prize Cases, 2 Black, 635,670). In the opinion in these cases, Mr. Justice Grier, speaking for a majority of the court, says, 'Whether the President, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him; and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the peculiar circumstances of the case.' There had been no declaration of war. Congress can alone declare war; but the court held in the same cases that that body could not declare war against a State, or any number of States, by virtue of any clause in the Constitution. It also held that the President had no power to declare or initiate a war either against a foreign nation or a domestic State. It, however, distinctly decided that the President could, and did, recognize a state of war as actually existing, and that the courts were bound to accept such recognition of the fact as conclusive. Of course they must recognize the legal consequences which flow from the state of war. It would seem to follow that if the President has the power to recognize a state of war as an existing fact, and that this recognition is binding.on the courts, he must equally have the power to recognize a state of peace as an existing fact, and that the courts are equally bound by such recognition. Especially would this seem to be the case in this civil war, where no formal treaty of peace could mark the line where war ended and peace commenced, and where there was no declaration of the legislature inconsistent with the proclamation of the Executive.
"But whether this is the true doctrine or not, it must be remembered that the Act of Congress of July 13, 1861, authorized the President to declare certain States in insurrection, whereupon all commercial intercourse was to become unlawful. On the 16th of August following he issued such a proclamation. From that time forward the interdiction of commercial intercourse had the double sanction of public law and a special act of Congress operating from the date of the proclamation. Now, it may be said with some force, that inasmuch as commercial intercourse became unlawful under this act of Congress, ipso facto, on the declaration of the President of the fact of insurrection, it must have continued unlawful until the insurrection was by him, or Congress, declared ended; and that, therefore, he could not legalize free intercourse between the citizens of the two sections, without first declaring the Rebellion suppressed. But this would be a very narrow and technical view to take of a great public question, relating to an anomalous condition of public affairs, and bearing upon interests of infinite diversity and great magnitude. The Act of July 13, 1861, by its express terms, was to be operative as an interdiction of intercourse, only through a proclamation of the President. Congress left it to his discretion to put the interdiction in force. I think, by fair implication, it left with him the power to withdraw it. There were reasons of the highest public import why this power should remain with him. The war had commenced during a recess of Congress. It was necessary for the President to act promptly, and he called for troops, and set on foot a blockade some time before Congress could assemble. Hostilities might cease, and the war be substantially terminated, also, during a recess of Congress, when prompt action by the President might be of the highest importance both to our foreign and domestic commerce. This power of the Executive to restore pacific intercourse seems to have been practically conceded without dissent from any quarter. Neither Congress, nor the Executive, nor the people, have acted upon the assumption that intercourse between the people of the two sections in private civil affairs has been unlawful since June 13, 1865. On the contrary, by the common consent of all departments of the government, such intercourse was substantially free and unrestrained after that date as well as after the 2d of April, 1866. Business began to seek its old channels; new contracts were made; old ones litigated and enforced in the courts of both sections, and money invested at the South in various enterprises. No doubt would ever have arisen as to the validity of the President's proclamation removing all restrictions upon ordinary pacific intercourse between the people, but for the subsequent struggle between Congress and the Executive Department as to the political status of the Southern States. But that controversy has no proper relation to the question now under consideration. Congress has never, even by implication, declared commercial and pacific intercourse of any kind unlawful since the President assumed to remove the restriction, June 13, 1865. On the contrary, its silence on this subject, when legislating on the purely political questions involved, in what is called 'Reconstruction,' supports the inference that the ordinary civil pursuits of the people, and all the rights incident to them, including the right to free intercourse between the citizens of both sections, and the right to resort to legal civil remedies, were considered by Congress itself as no longer under the ban of war. I am, therefore, satisfied that the authority of the President to issue the proclamation of June 13, 1865, restoring free intercourse, was full and ample, and that its exercise has been acquiesced in by the national legislature.
"We are next to consider what was the legal effect of that proclamation. Its language has already been cited. Beyond all question, it embraces all contracts thereafter to be made, and delivers them from the invalidating effect of public law, as well as from the effect of the statute of July 13, 1861, and the proclamation made in pursuance thereof, August 16, following. Such contracts being valid, the right to enforce them in the courts necessarily followed. A citizen of one section could sue a citizen of the other on such a contract without having his suit defeated on the ground that it was invalid either by public or statute law, or abated under the plea of alien enemy. Both the right and the remedy on such a contract were complete.
"The question then arises, in what condition were the numerous contracts, existing when the war commenced, left by the proclamation of June 13, 1865? Were they still suspended, and the parties without any right to enforce them? Undoubtedly unpaid debts contracted before the war could have been lawfully paid by citizens of one section to those of the other at any time after the date of this proclamation. This would be exercising one of the privileges of' domestic intercourse,' restored in express terms by that proclamation. It would seem to follow that the right to enforce payment through ordinary legal remedies must have been restored also. It would be absurd to contend that the proclamation removed the prohibition to enter into new contracts, and left those entered into before, and existing at, the commencement of the war, suspended. Such a distinction would be unjust as well as absurd. It would be a distinction between rights of the same class, and could rest upon no principle of natural justice, good sense, or sound policy. No such construction should be given to a State paper like this proclamation. It was made in the interests of peace, and its ordinary beneficent pursuits, and in furtherance of the rights of the people of both sections of a common country. No possible advantage in the way of convenience, interest, or security to the public or to individuals, consistent with justice, requires that its operation and legal effect should thus be contracted. It should, therefore, receive a liberal, rather than a narrow and technical, interpretation.
"It follows from these principles, that the contract upon which this suit is founded, though suspended during the war, while intercourse between the citizens of the belligerent sections was unlawful, revived on the 13th of June, 1865, and from that date was In full force. From that time there has been no legal obstacle to its enforcement . Whether Mississippi was without civil tribunals during any portion of the time since the contract revived, is neither averred in the replication, nor was it proved on the trial. This court cannot take judicial knowledge of that point. But it is immaterial. The plaintiff could have resorted to the State tribunals of Connecticut, or to this court at any time since his appointment as administrator. Not having brought his suit within the time limited by the policy, exclusive of the whole period of disability, the plea in bar is a conclusive answer to his right to recover. Judgment must, therefore, be entered for the defendants."
This opinion of the learned judge, though not in direct conflict with the opinion of the Attorney General, given above, can hardly stand together with it.
The Cheney Case. — The Rev. Charles Edward Cheney, a presbyter of the Protestant Episcopal Church, is a clergyman of what are popularly called Low Church or Evangelical views, and has been charged, whether rightly or wrongly, with habitually omitting the words "regenerate" and "regeneration" in the office of infant baptism. On this charge he was summoned by the Bishop of Illinois before an ecclesiastical court. Mr. Cheney appeared before the court and made several objections to the jurisdiction and proceedings of the tribunal; these objections were overruled, whereupon Mr. Cheney applied to Judge Jameson, of the Superior Court of Chicago, for an injunction restraining the members of the court from acting or pretending to act as an ecclesiastical tribunal, and the judge granted the injunction. This proceeding has elicited much comment, and the action of Judge Jameson has been loudly applauded and loudly condemned; but none of those who have discussed the question seem to us to have looked at the matter from the proper legal point of view.
Judge Jameson's action we hold to be improper, and for this short reason. Mr. Cheney is a presbyter of the Episcopal Church, which is, in the eye of the law, merely a voluntary association; by accepting that office in such association he acquired a legal right to certain privileges and immunities granted by the rules of such association to its presbyters, and he also became liable to be removed from office by a tribunal which, by the rules of such association, should have jurisdiction to try him, and which should proceed against him in accordance with such rules. But if a tribunal tries him which by such rules has no jurisdiction of his case, or if a tribunal which has jurisdiction does not proceed against him in accordance with such rules, the action of such tribunal is simply void and its judgment inoperative: there is no need to enjoin its proceedings; its sentence has no more effect than if the so-called court was a pack of boys playing at bishops. If an attempt is made at enforcing'such sentence by ejecting the accused clergyman from his church, or refusing him his salary or otherwise, then he has his remedy at law, but not till then. We take it, that any man or number of men have a right to try any person for heresy (if such person is fool enough to appear before him or them) without being enjoined by a court of law. If he or they are a tribunal which, by the rules of the ecclesiastical body to which the accused belongs, have a right to try the accused, and if they proceed according to such rules, then their sentence is operative; if they are not such tribunal, or if they do not so proceed, then their sentence is nothing but idle words.
Whether the proceedings against Mr. Cheney are regular or not wo have not the means of judging; but, whether regular or not, we are clear that a court of chancery has no right to stop them by an injunction.
The enormous increase in the use ef injunctions by courts of equity throughout the United States during the past few years may well awaken the alarm of the community. They are employed with a frequency and in cases which were never dreamed of by the early chancellors, beyond the utmost claims of Lord Ellesmere in his contest with the greatest of the common lawyers. An injunction is a powerful aid to justice, but it may also be a powerful instrument of oppression. The granting of an injunction is eminently an act of judicial discretion; and in a country where, in theory at least, the judiciary have althost autocratic power, where they are above not only the executive, but the legislature, judicial discretion ought to be strictly limited and confined within narrow bounds. We commend the matter most seriously to the attention of our legal reformers.
In the June number of the "Western Jurist" (Vol. 3, p. 134) will be found the case of Hansen v. Vernon, on which the Supreme Court of Iowa hold that, under the Constitution of the State, the legislature has no power to authorize the majority of the inhabitants of a township to vote a tax the proceeds of which are to be given to a private railway company in which the tax-payers have no interest. The elaborate opinion of Chief Justice Dillon is worthy a careful reading. A similar decision has been made by the Supreme Court of Wisconsin in the case of a railroad, in Whiting v. Sheboygan R.R. Co., 1 Chicago Leg. J. 378; and also by the Supreme Court of Wisconsin in the case of the Jefferson Liberal Institute, in Curtis v. Whipple, 1 Chicago Leg. J. 335.
Court Of Appeals. — Ward v. State of Maryland. The Act of the legislature of Maryland of 1808, c. 413, provides that "no person, not being a permanent resident of this State, shall sell, offer for sale, or expose for sale, within the limits of the city of Baltimore, any goods, wares, or merchandise, other than agricultural products and articles manufactured in the State of Maryland, within the limits of said city, either by card, sample, or other specimen, or by written or printed trade list or catalogue, whether such person be the maker or manufacturer thereof or not, without first obtaining a license so to do." The cost of a license is three hundred dollars a year, and a penalty is imposed for selling without license.
A case has been brought before the Court of Appeals to test this law. The counsel for the defence contended that the act was repugnant to that clause of the Constitution of the United States which gives to Congress the power to regulate commerce with foreign nations and among the several States, and also to that other clause which declares that " the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States." The court, however, overruled both objections, and held the act constitutional. The case is reported in the "Baltimore Daily Law Transcript" for July 24, 1869.