law is inconvenient in some cases; but even if this opinion were founded, how august, on the other hand, appears the law-I do not mean a single statute, but the whole self-evolving system of a common law of the land. -that errs on the side of individual liberty against the public power and the united weight of government!

The reader has seen from the passage on warrants, which I gave in a preceding part of this work, how far this principle is carried in the case of resisting an officer, even to the killing him, if his warrant be not wholly correct. Another proof of the uniform acknowledgment of this principle and essential pillar of civil liberty, is this, that when a British minister obtains an act of indemnity, which is an act of impunity for certain illegal acts, which, nevertheless, necessity demanded, the act of indemnity is never for him alone, but it expresses that the act shall also cover what the inferior officers have done by the direction of the minister in the premises.20

In conclusion, I would remark that it is wholly indifferent who gives the order. If it be illegal, the person who executes it remains responsible for the act, although the president or the king should have ordered it, or the offending person should be a soldier obeying his commander. It is a stern law, but it is a sacred principle, and it has worked well.

20 For instance, in the scarcity of grain, in the year 1766, Chatham prohibited exportation of grain. When parliament met, he read a passage from Locke to show that what he had done was not legal, yet right. In'demnity was passed for him and those who had acted under him. In 1818, ministers asked and obtained indemnity for the suspension of habeas corpus, for themselves and magistrates under them. Many other instances might be given. See Lieber's Legal and Political Hermeneutics, note to page 79. Acts of indemnity cannot be passed with us, because we have a constitution of which the legislature itself is but the creature, and we cannot pass ex post facto laws. All that remains for us to do in cases of absolute necessity, or transcendent utility, is to pass over the occurrence in silence; or Congress may show its concurrence by aiding in the act. This was the case when Mr. Jefferson purchased the mouth of the Mississippi, i.e, the territory of Louisiana.

CHAPTER XI.

QUARTERING SOLDIERS. THE ARMY.

12. GOVERNMENTS, if not very closely hedged in, have it in their power to worry citizens into submission by many indirect methods. One of these, frequently resorted to since the introduction of standing armies, is that soldiers are billeted with the disaffected citizens. An insolent soldiery, supported by the executive, find a thousand ways of annoying, insulting, and ruining the family with whom they are quartered. It has been deemed necessary, therefore, specially to prohibit the quartering of soldiers with citizens, as an important guarantee of civil liberty. The English bill of rights, "declaring the rights and liberties of the subject," in 1688, enumerates in the preamble, as one of the proofs that James the Second "did endeavour to subvert and extirpate" "the laws and liberties of this kingdom," his raising and keeping a standing army within the kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law." It is in England, therefore, a high offence to quarter soldiers without consent of parliament; and the constitution of the United States ordains that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.' The framers of the constitution, it will be observed, were very exact in drawing up this paragraph.

Persons not versed in the history of civil liberty and of progressive absolutism, might be surprised at this singling out of quartering of soldiers in documents of such elevated character and condensed national demands as the Bill of Rights and the American constitution are; but the " dragonades" of Louis the Fourteenth, in France, of James the Second, in Scotland, and those of more recent and present date, furnish sufficient justification for this specific guarantee.

13. The preceding safeguard, although justly pointed out separately, is still only part of the general one that the forces must be strictly submitted to the law. The navy cannot be, in its nature, so formidable an instrument in the hands of the executive as the army. It cannot be brought to bear upon the people; it is not centralized in its character, and it cannot surround the ruler. There are many other reasons why the navy, the floating bulwarks of a nation, has an inherent affinity with the popular element, and why free nations only can have efficient navies or merchant fleets, as a distinguished statesman of the United States' has observed.

It is far different with the land forces. Ever since standing armies have been established, it has been necessary, in various ways, to prevent the army from becoming independent upon the legislature. There is no liberty, for one who is bred in the Anglican school, where there is not a perfect submission of the army to the legislature of the people. We hold it to be necessary, therefore, to make but brief appropriations for the army. The king of England cannot raise an army, or any part of it, without act of parliament; the army-estimates are passed

1 Mr. Poinsett.

2 The guards of Charles the Second were declared anti-constitutional; and the army of James the Second was one of the evidences by which he

for one year only, so that, were parliament to refuse appropriations after a twelvemonth, the army would be dissolved. The mutiny bill, by which power is given to the king to hold courts-martial for certain offences in the army, is likewise passed for a year only; so that, without repassing it, the crown would have no power even to keep up military discipline.

The constitution of the United States makes the president, indeed, commander-in-chief, but he cannot enlist a man, or pay a dollar for his support, without the previous appropriation by Congress, to which the constitution gives "power to make rules for the government and regulation of the land and naval forces," and to which it denies the authority of making any appropriation for the support of the national forces for a longer term than two years.

The importance of this dependence of the army upon the civil power has been felt by all parties. While the people are bent on submitting the army to the legislature, the governments, which in the late struggles were anxious to grant as little liberty as possible, always endeavoured to exclude the army from the obligation of taking the constitutional oath. Constitutional oaths, like other political oaths, are indeed no firm guarantee in times of civil disturbances; but where circumstances are such that people must start in the career of freedom with an enacted constitution, it is natural and necessary that the army should take the oath of fidelity to the fundamental law, like any other persons employed in public service, especially where the oath of allegiance to was presumed to have abdicated—that is, in other words, one of his breaches of the fundamental law of the land. A new sanction was given to this principle in the sixth article of the Bill of Rights, which runs thus: A standing army, without the consent of parliament, is against law.

the monarch continues. The oath when taken, we have already admitted, does not furnish any great security; but in this, as in so many other cases, the negative assumes a very great and distinct importance, although the positive may be destitute of any direct weight. The refusal of this oath shows distinctly that the executive does not intend frankly to enter on the path of civil freedom. This was the case in Prussia, when, lately, there seemed to be some hope of seeing constitutional liberty commenced in that country.

The Declaration of Independence says: "He has kept among us in times of peace standing armies without the consent of our legislatures." It is enumerated as a radical grievance, plain and palpable to every Anglican mind. Immediately after, the declaration significantly adds: “He has affected to render the military independent of, and superior to the civil power." This "affected" is striking. The attempt of doing it, though the term affected indicates the want of success, is counted as a grievance sufficient to warrant among others an extinction of allegiance. Of the twenty-seven grievances enumerated in the declaration as justification for a revolution, three relate to the army.

Dr. Samuel Johnson, not biassed, as the reader well knows, in favour of popular liberties, nevertheless showed that he was bred in England, when he speaks of “the greatest of political evils-the necessity of ruling by immediate force." There is, however, a greater evil still the ruling by immediate force when it is not necessary or against the people.

3

Standing armies are not only dangerous to civil liberty, because directly depending upon the executive; they have the additional evil effect that they infuse into the

3 Considerations on the Corn Laws, by Dr. Samuel Johnson.

H