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other words, the civil establishment is in full operation. The Count de Lancaster, having been taken in open insurrection, was, by judgment of martial law, put to death ; and this, though it was conceded that Lancaster was taken in an armed effort to overthrow the laws, was adjudged murder. The reason assigned by the great English lawyers in the case of the Count de Lancaster, was that the courts were in full operation, with exclusive jurisdiction of the offence, and that the courts martial could in no case exercise authority over persons outside of the military service. The question of the actual guilt of the offender did not come before the court. Nor was it a question of jurisdiction between two courts of civil judicature. It was the exercise of illegal authority, by a tribunal which the common judgment of the nation regarded with distrust and aversion, and which the common experience of mankind had found necessary to keep within the strict limits of its constitutional powers.
A more extreme illustration of this idea cannot be conceived than that of the execution of Governor Wall, twenty years after the offence had been committed.
The Federal Government has delegated power to Congress to ordain articles of war for the government of the land and paval forces of the United States. The purpose of this grant is too obvious to justify comment. Its language indicates the scope of the authority delegated. It is necessary, everybody admits, to institute separate and positive rules for the government of every military establishment. Hence, even in an elective republic like that of the Union, where the sovereign power, by common consent, remains in the people, whose General Government provides for the periodical return to them of all authority, it was found necessary to ordain for the army and navy distinct and positive regulations, of an arbitrary nature, to the end that discipline and efficiency might be preserved therein. Nobody will question the fact, that these regulations are in conflict, most essentially, with the great principles which underlie a free system of laws. There is no freedom, properly speaking, in military government. Nor can there be any. The best that can be done, is to so construct the political system of the state, that its civil establishment shall authorize and empower the military to do certain things within its own service
limited exclusively to persons legally enrolled therein—which, by its constitution and the philosophy of the system, can be done nowhere else. But even this authority must be strictly confined to the preservation of discipline ; for on no other basis can it be justified, either by logical or analogical reasoning. Every officer, from the commander-in-chief to the lowest subaltern, is accountable to the civil establishment for the manner and extent of its exercise. The military is a creature of the law, and never a judge of the law. Its tribunals are limited by the Constitution of the United States, and by the practice of our own and the British Government, to the narrow sphere of its own service, and in that service, to the simple preservation of discipline.
Another consideration of the subject, it appears to us, is entitled to great weight in connection with the federal system. The authority of the Union is limited to certain specific grants, the States having retained to themselves all the powers of government not expressly delegated. The Supreme Court of the United States, in the case of Luther vs. Bordan, growing out of what is known as the Dorr Rebellion, stated expressly that they would follow the decisions of the State courts in all questions which concern merely the constitution and laws of the State.
It will be remembered that the legislature of Rhode Island declared martial law within the limits of the State ; and that its officers, under the authority thus given them, not only assumed exclusive military jurisdiction over persons within the service, but enforced absolute rule over all the people. The case was an extreme one, indeed; for martial law, as enforced, had not been thus enlarged, since the presentation and enactment of the Petition of Right, in England. It was carried out without any pretence of aid to the civil authorities, without any apparent recognition of the existence of a civil establishment at all, but by all the forms of arrest without warrant, oath, or affirmation, by breaking into houses, where no alleged offenders were found, and acting exclusively under military orders of the State.
Chief Justice Taney, without giving any opinion upon the legality of the proceedings, in rendering the decision of the court, declares that the United States have no power to go behind the action of the constituted authorities of a sovereign member of the Union. The case did not, in other words, come within the legal jurisdiction of the United States. It was for the State of Rhode Island alone to determine whether she would recognize an exclusive military government over her people, or not.
We allude to this phase of our compound system, to show that there are more powers than one to be consulted, in cases involving the unwarranted exercise of military authority in this country. That of the United States is limited to the federal army, within the scope of the laws, and to the single end of preserving discipline therein. On this subject we give entire, at the close of this chapter, the minority report of the judges, by Mr. Justice Woodbury, in the case of Luther vs. Bordan, because it is a full exposition of martial law, and its legal accuracy is not questioned by the majority decision, the latter resting the case exclusively on the ground that they had no right to go beyond the action of the authorities of a sovereign State. This report will be found very full in argument and authority, and will well repay, in these times, a careful reading. In further illustration of the subject, we give entire the exposition of Lord Loughborough, of what in England is regarded as the relation of martial law to the civil establishment of the kingdom.
Having traced out the origin of martial law (or military law, or the war power, as the arbitrary enforcement of military government has been indifferently denominated), its decline, under the gradual enlargement of the civil establishment, to its final overthrow, at the close of the sixteenth and commencement of the seventeenth centuries, we have now only to refer to the ordinary practice of the existing Administration to put the reader in possession of all that is necessary to enable him to form an enlightened judgment upon the current events of the day touching the maintenance of our free system of laws. It is quite unnecessary to reiterate what we have already stated upon this point. The exercise of martial law, to the utmost limit of its enforcement in England, up to the year 1688; its actual control over all persons at will, both in and out of the military service; its extension to the every-day exile or transportation of persons beyond the limits of the authority of the United States; its levy and collection of taxes; its arbitrary imposition of fines; its arrest and imprisonment of citizens without any warrant of law; its suppression of free speech, the press, religious freedom, and trial by jury; its confiscation of estates; its summary execution or murder of persons; and, finally, the open justification of all these acts, by high officers of state, are simple historical facts. It matters little, to a suffering people, by whose direction or order, or in what name, or by what pretended authority, these things have been done. They stand as historical events, justified by those who have caused them, and the power that commanded them is still supreme over public affairs. We will not undertake to argue the question whether they are legal or illegal. To any man of common understanding, they must be received as conclusive evidence of great depravity or great ignorance.
It is too late in the progress of free government to argue the question whether the governor of a State is authorized, by the existence of war or rebellion, to become a despot. We must submit tamely to the surrender of all that makes a nation of freemen, or we must vindicate our rights, enforce our laws, and cherish our ancient habits, customs, and traditions. We cannot command the respect of the world and permit such despotic institutions as martial law to govern our people. If we prefer a despotism to civil liberty, let us have it in its usual forms, and with its usual responsibilities. We cannot well suffer the agonies of a struggle for absolute rule. It would be far better, at once, to accept the new order, and aid to clothe it with the dignities and formalities of dynastic government.
There are excuses to be urged in behalf of those who choose to submit to the arbitrary orders of a great military commander. Mankind are often disposed to yield a sort of homage to those whose career marks their superiority over their fellow men. The history of the world is full of instances of this nature, and we all dwell upon them with peculiar interest, and often feel our sympathies turning to those whose brilliant deeds have raised them to dynastic honors, even at the expense of the liberties of the people.
We are not permitted to avail ourselves, however, of this species of justification for abandoning that noble structure of free government, under which we have lived and prospered from the very first day of our occupation of this continent. All our great men, without a single exception, have evinced the most earnest and profound love of our institutions. We remember no instance, in the whole history of the country up to the year 1861, in which a great public man has not shown his entire devotion to our free system of laws, and made their strict maintenance the first and last duty of every good citizen. Precisely when we had most need of fidelity and patriotism we have found both most wanting, among representatives and people. The Union, menaced by widespread and thoroughly organized rebellion against its authority, not by detached masses of the people, but by great and powerful constituent States, acting on the theory of the right of secession, we have undertaken to enforce its powers over all its original territories, not by the command and direction of the civil establishment, but solely by the command and power of the military. It is impossible to overlook the great fact that the employment of civil officers has ceased to be a perceptible feature in the general administration of the Union. Those duties which, with rare exceptions, under the British system, have not, for more than five hundred years, been intrusted to the military, are now habitually discharged by that arm of the public service. We venture to say that there is not one single general officer engaged in active service who, judged by English or federal law, has not made himself liable to infamous punishment through the courts of civil judicature; nor is there the least question but those courts have legal jurisdiction of every such offence. But the actual power is all in the hands of the military; at precisely the time, too, it niust be borne in mind, when the people are called upon to submit to the heaviest sacrifices to uphold the authority and enforce the laws of the Union! Just when we require the greatest integrity as an example to offenders, and as a means of uniting and strengthening the friends of the Government, precisely then we are made to feel that other than patriotic considerations control the councils and direct the policy of the nation. It is surely not martial law and military government, extended over the " loyal ” people of this country, which will best put down the “disloyal," and restore the supremacy of the laws. We cannot comprehend the wisdom of the policy which commands that if one State turns against the Union