could never countenance the possession of such a power by the Congress. Its exercise might lead to interminable confusion. In fact, its possession is inimical to the theory of the federal system. As we have seen, that system can only really obtain, where the power-distributing organ exists back of both the general government and the commonwealths. The most difficult question pertaining to this subject concerns the power of Congress to withdraw from a given population the commonwealth powers, or rather to determine the existence of conditions under which the constitution withdraws them. I think it entirely evident that the commanderin-chief has, under the constitution, the power to suspend self-government among any population inhabiting districts. which are the theatre of war, no matter whether the enemy be foreign invaders or rebellious subjects. It is also the function of the commander to determine when the war ceases in the given districts. When he does so, it would appear logical for the ordinary ante-bellum status to revive spontaneously. Again, there is no doubt that the forcible resistance of a commonwealth itself, i.e. of the legally estab lished commonwealth government, to the authority of the central government, destroys the conditions upon which the possession of commonwealth powers rests. Such a commonwealth, if successful in its resistance, may become an inde pendent state, but from the moment when it begins such resistance, it ceases in sound political theory to be a commonwealth under the constitution. From the standpoint of political science it is from that moment only a territory inhabited by a rebellious population seeking to construct for itself an organization foreign to the United States. The suppression of the rebellion by the military power restores the authority of the general government only. It subjects such a population, therefore, to the centralized system of government. In such a case, the suspension of martial law restores only the ordinary government of the United States over unorganized territory.1 It remains then with the Congress to legislate exclusively for such territory and to determine how long this status shall continue. It remains exclusively with the Congress to erect new commonwealths within such territory. It remains with the Congress to fix anew the boundaries and the populations of these new commonwealths. From the standpoint of political science these would be entirely new creations. They should not be regarded as continuations or restorations, even though the boundaries should be identical and the populations substantially the same. Lastly, the constitution expressly confers upon Congress the power, and imposes upon it the duty, to maintain republican government in every commonwealth. The exact wording of the constitution is "that the United States shall guarantee to every State" (commonwealth) "in this Union a republican form of government," etc.2 The Court has interpreted the phrase "United States" to mean, in this connection, the Congress; and the plain meaning of the whole clause is that Congress shall determine in what republican government, within a commonwealth, consists, and shall deprive any unrepublican commonwealth organization of the powers of govern ment. It does not appear to me to be required by the constitution that Congress, before acting, shall wait for application from any person or organization of persons within the commonwealth. I think it may proceed of its own motion. The power of the general government to protect a regular commonwealth government against domestic violence, upon application made by the commonwealth legislature or, in case the legislature cannot be convened, by the governor, is distinct 1 United States Statutes at Large, vol. 14, p. 428 ff. Mississippi v. Johnson, U. S. Reports, 4 Wallace, 475. Georgia v. Stanton, U. S. Reports, 6 Wallace, 51. 2 United States Constitution, Art. IV, sec. 4. 8 Luther v. Borden, U. S. Reports, 7 Howard, 1. in theory from that of preserving a republican form in every commonwealth. While the federal system is indestructible, under the constitution, by the governmental act either of the general gov ernment or of a commonwealth, the question whether the population inhabiting a given district shall be under the federal system, or shall be subject exclusively to the general government, is a question for Congress to determine. The Congress may declare the existence of those conditions which, according to the spirit of the constitution, work the destruction of a particular commonwealth, and the Congress may thereupon exercise exclusive legislation over the given district, although no act of the Congress can expunge the federal system from the constitution. The failure of the jurists to distinguish between the abstract proposition and the concrete rule upon this subject has produced an endless amount of confusion in their reasoning.1 13. Legislation in respect to Administrative Measures. Finally, the constitution vests in Congress the power "to make all laws which shall be necessary and proper to carry into execution all powers vested by the constitution in the government of the United States, or in any department or officer thereof." 2 What the political scientists term the ordinance power, the power to create the ways and means for the execution of governmental powers, is thus vested, exclusively, in the legislative department of the government. Neither the President nor the Court can execute the powers vested in them by the constitution, if the constitution does not itself provide the ways and means, until the Congress enacts the necessary ordinances. The Congress, therefore, may lame and destroy the action of the other departments of the government, may 1 See the Virginia Coupon Cases, 114 U. S. Reports, 269. even defeat the purpose of the constitution, and there is no help for it save at the elections. The controversy over the extent of the power conferred upon Congress by this provision has been long and exhaustive, and a result has been finally reached which is clear and unequivocal. It has at last been fully decided that Congress has the power to authorize and enact any appropriate ways and means, not forbidden by the constitution, which are adapted or conducive to the execution of any of the powers of the government, and which, in the judgment of the Congress, will be most advantageous in producing the desired. result. The Court will determine, in any particular case regularly brought before its bar, whether the particular means involved are appropriate, adapted or conducive to the end sought; but it has rightly manifested the disposition to defer to the views of the Congress upon these points, so long as the action of Congress does not violate other provisions of the constitution. 1 Juillard v. Greenman, 110 U. S. Reports, 421. CHAPTER VIII. THE POWERS OF THE GERMAN IMPERIAL LEGISLATURE. 1. Legislation in respect to Foreign Relations. The constitution confers upon the Imperial legislature the power to ratify treaties with foreign states, whenever a treaty deals with matters which, according to the provisions of the constitution, are subject to Imperial legislation.1 A treaty in regard to such matters cannot be made binding upon the Empire in any other manner. As a rule, a treaty in regard to such matters can be made and ratified only by the organs of the general government. There is, however, one exception to this rule, viz; that the commonwealths may make treaties with their immediate foreign neighbors in regard to the postal and telegraph communication across the boundary between them.2 Both the provision and the exception may easily lead to ugly complications.3 Who shall separate the matters that are assigned by the Imperial constitution to the domain of Imperial legislation from those that are not thus assigned? Who shall determine whether a treaty regulation between a commonwealth of the Empire and a foreign state includes anything more than the regulation of boundary communication? The constitution does not solve these problems or specifically vest any organ of the government with the power to solve them. The Emperor alone is in position to exercise such a power, and I suppose that a just appreciation of the spirit of the constitution would attribute it to him. 1 Reichsverfassung, Art. 11, § 3. 2 Bundesgesetzblatt, 1871, S. 25 . Laband, Das Staatsrecht des deutschen Reiches; Marquardsen, Handbuch, S. 109 ff. |