the authorities of the latter should disfranchise all the others, as the best means of restoring order and good neighborhood; that if one section renounces its obligations, the others should be deprived of the power of fulfilling theirs.

If the seceding States of the South were guilty of a great wrong in resisting the authority of the confederation, how is it possible to make the proof of it available to us otherwise than by a faithful and honest effort, on our part, to restore that authority? If we consent that the laws shall be set aside, from whatever motive or on whatever pretext, are we less guilty of disobedience to their authority and commandment than the people of the seceding States? There is surely nothing else to maintain than our free government. Mr. Webster says: "Whatever government is not a government of laws is a despotism, let it be called what it may." This is a plain proposition. If it is not the law that governs, what is it but a man? Hence we find the same great statesman to lay down this principle in connection with the maintenance of a free system of laws :

"Nothing can be more repugnant, nothing more hostile, nothing more directly destructive, than excessive, unlimited, and unconstitutional confidence in men; nothing worse than the doctrine that official agents may interpret the public will in their own way, in defiance of the Constitution and laws; or that they may set up anything for the declaration of that will except the Constitution and the laws themselves; or that any public officer, high or low, should undertake to constitute himself, or to call himself, the representative of the people, except so far as the Constitution and laws create and denominate him such representative."

This language is equally plain and conclusive. The subject under discussion was the exercise of executive powers by the President of the United States. Those powers are all expressly defined. To go beyond their authority is "repugnant, hostile, and destructive to the Constitution and laws of the state; " for when "official agents" go beyond that authority, then surely we have not a government of laws, but a despotism, "let it be called what it may." The inquiry is returned to us, can we be ranked as vindicators of the Constitution and laws of the Union, so long as we permit our

official agents to set up anything else as the governing power over the people?

Do we come to the work with clean hands to enforce the laws, or seek the restoration of friendly intercourse and political brotherhood between the North and the South, when throughout all the loyal States we find the civil establishment to have been superseded or driven out by the military?

Can we be considered Union men, battling for the preservation of the Constitution and the enforcement of the laws, until we have stricken down that dominant military power which now governs all the "loyal" States ?

If we are contending for anything, it is for the civil establishment. It is a great misfortune for a free state ever to be compelled to call into being a military force of any considerable numbers, and a great crime to permit its employment in any other way than in aid of and obedience to the orders of civil tribunals.

A free state can never have any sufficient occasion for the enforcement of martial law, for when that species of arbitrary and irresponsible government is really necessary, the evidence will be conclusive that it has ceased, to all practical intents and purposes, to be a free state. A despotism is made by the exercise of original and supreme power by the chief of a state. It consists in the simple fact that such power may be exercised. It would be not less a despotism in the event of the assumption of supreme power, in particular cases, whether the chief should enforce the former laws of the community or not. Cromwell governed through established English tribunals and laws long after his assumption of dictatorial powers. Hume says, on this subject, that "all the chief offices in the courts of judicature were filled with men of integrity; amidst the violence of faction the decrees of the judges were upright and impartial; and to every man but himself, where necessity required the contrary, the law was the great rule of conduct and behavior."

upon

Nobody will question the completeness of the revolution which conferred the Lord Protector dictatorial and despotic powers. The process of its exercise is admirably described by the same learned historian:

"The Protector instituted twelve major-generals, and divided

the whole kingdom of England into so many military jurisdictions. These men, assisted by commissioners, had power to subject whom they pleased to decimation, to levy all the taxes [see recent proceedings of General Hugh Ewing in Kentucky, and like proceedings in Missouri and other States] imposed by the Protector and his council, and to imprison any person who should be exposed to their jealousy or suspicion; nor was there any appeal from them but to the Protector himself and his council. Under color of these powers, which were sufficiently exorbitant, the major-generals exercised authority still more arbitrary, and acted as if absolute masters of the property and person of every subject. All reasonable men now concluded that the very mask of liberty was thrown aside, and that the nation was forever subjected to military and despotic government, exercised not in the legal manner of European nations, but according to the maxims of Eastern tyranny. Not only the supreme magistrate owed his authority to illegal force and usurpation, he had parcelled out the people into so many subdivisions of slavery, and had delegated to his inferior ministers the same unlimited authority which he himself had so violently assumed."

Perhaps no chief of a state ever made more sanctimonious professions of friendship for the people, or more repeated promises to preserve and maintain the civil establishment, than Cromwell. If he exercised absolute powers, it was necessary, he claimed, in order to put down" disloyal" persons. Without the time or disposition to enter at large into the enormous wrongs of the Protector's government, one great fact is apparent, that he was not only the chief of a Puritan faction, but his administration of the state was so conducted as to practically exclude from the body politic every subject who did not enter fully into his policy. All such persons were regarded and treated as disloyal" to the government. It is not difficult to see from this basis how readily and conclusively the right was established to forage on all those who did not either really or nominally sustain his "God-ordained Protectorate." He had made ample provision for carrying out his work of oppression and confiscation, by parcelling out the people into military sections, and setting over each a major-general.

The employment of the civil establishment, even through the

most pliant of agents, was too cumbrous, heavy, and uncertain to answer his purpose. There is always too much light in courts of judicature to render their employment in works of oppression either safe or effective. "An army," on the other hand, says Hume, "is so forcible, at the same time so coarse a weapon, that any hand which wields it may, without much dexterity, perform any operation and attain any ascendant in human affairs."

It is hardly necessary to add, that neither persons nor prop. erty have ever been respected under the government of military

law.

Mr. Webster says: "We have no experience that teaches us that any other rights are safe where property is not safe. Confiscations and plunder are generally, in revolutionary commotions, not far before banishment, imprisonment, and death. It would be monstrous to give even the name of government to any association in which the rights of property should not be completely secured. . . . . . The English Revolution of 1688 was a revolution in favor of property, as well as of rights. It was brought about by the men of property, for their security; and our own immortal Revolution was undertaken not to shake or plunder property, but to protect it."

The civil establishment, under every government, represents and enforces the legal rights of the whole people, while the military establishment, under every known system, has been found practically to represent a faction. It is the very law of faction. It bears complete resemblance, in all its features and in all its actions, to a faction. Impatient of control, unruly, dictatorial, and uncompromising, it commands where expostulation would be better, and punishes where restraint alone is needed. We cannot do better in illustration of this idea than again to summon Mr. Web

ster:

"Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others, to keep off from us, the more liberty we have. . . . . The working

of our complex system, full of checks and restraints on legislative, executive, and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards thrown around individual rights and interests. That man is free who is protected from injury."

This power of protection exists solely in the law. Beyond the law it is all despotism. Revolutions involving the mere over-throw of one dynasty and the substitution of another, which takes up the old system of laws and enforces them, are of little comparative consequence. Beyond the derangement of business, for the day, and the displacement of one set of officers for another, their influence is scarcely felt. We may, without any extravagance, denominate our periodical elections as so many constitutional revolutions. They are important only as they involve greater or less fidelity to the law, in those who come in and those who go out of office. It is certainly a weak point in the system, that in the nature of things, the highest order of statesmanship is hardly eligible to the highest dignities of the state. The very term, "popular elections," indicates the necessity of giving one ear, if not both, to policy. He who can get the most votes is a better man in the judgment of partisans than he who is most learned, honest, truthful, and experienced in the conduct of public affairs. Policy is far more potent than the law. So we have found it. When it demanded the suspension of the civil establishment and the enforcement of martial law, we promptly gave up the one and sanctioned the other. Nothing was more common in the earlier stages of the present rebellion than for public writers to enter solemn protests against the enforcement of martial law, in the State of New York, for instance, while they justified its exercise in the border States, whose rights rest upon precisely the same foundations as those of the people of New York. It was policy that dictated those protests. It was not principle, because, had they been governed by its rules, they would never have justified so gross and clear a violation of them.

The minority report by Mr. Justice Woodbury, of the Supreme Court of the United States, in the case of Luther against Bordan