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before presented themselves. We had an elective system, embracing exclusive elective remedies. This was the corner stone and foundation of the political edifice. It embraced no other principle, touching the matter of its creation, existence, or mainten
It was indestructible, too, so long as this principle should have sovereign control in its administration. The exclusion of the ballot, in the adjustment of differences, under such a system, was the abandonment of the Constitution—the practical abdication of government by the people, and the installation of another kind of government, by irresponsible men.
In point of fact, we have signally failed, on the first great trial, to maintain free government. What is now of greatest interest, is to ascertain, if possible, the cause of this failure, which must be the source of our greatest weakness.
A review of the past and present position of the States and Union, it seems to us, discloses this striking defect :
Ignorance, on the part of the people, of the real office and what is necessary to maintain a free system of laws; or non-appreciation of the necessity, at all times, of maintaining the supremacy of the laws over individuals.
It would be difficult to find testimony more complete, in support of this suggestion, than that which the present. National Administration has presented, within the short period of its rule. Starting with the open declaration that the public exigencies demanded the removal of all legal restraints, its measures, from that time to the present, have, in no material respect, been made to conform to the Federal Constitution. It is due to candor to say, however, that both Congress and the people have distinctly approved, and, as far as their action could do so, justified, the annul. ment of the organic law and the substitution of the will of the chief magistrate, as the governicg power of the country. In other words, if the President violated the Constitution and the rights of persons and property, his criminality is no greater than that of the people, who either indorsed, or gave a qualified assent to, all his acts of usurpation. The offence, in this way, was compound. There was no other process so sure to ruin the President, on the one hand, and the institutions of government, on the other. No man could withstand such temptations, and no system of laws such a terrible shock.
We deem it unnecessary to point to the public records of the country, to show that we have not drawn our conclusions from an imaginary condition of public affairs. The announcement, by the President, of the imperial power of war, under his exclusive control; bis suspension of the writ of habeas corpus; bis abrogation of many provisions of the Constitution, trial by jury, free speech, the press ; his wilful confiscation of estates; his new law of treason; bis emancipation; his assumed jurisdiction over all the people, even to their expulsion from the country by military force, are surely enough to justify what we have said.
Granting that the highest motives of patriotism governed him, it makes nothing in his favor, as a political trustee, under defined powers; for there was nothing but the Union to save, and there could be no legal agency employed in the work other than those ordained by the States.
The States had ordained a limited, but perfect government of laws, to be maintained by them, within the sphere of its authority. It was fearfully menaced, not by mere casual disobedience, but by organic, internal convulsion.
Its authority was openly set aside by large and influential States, four of which were original parties to the Union. Our duty was a plain one-to vindicate the laws within the scope of the authority of the Constitution, and by its appointed agencies.
There could be no other vindication; for the instant we transcended this limit, no matter with what motive, we became assailants, not defenders of the Union. If the latter provided one remedy for a certain political disease, and we failed to employ it, and substituted another, it follows that we would not trust the law nor wait till we could modify it in obedience to prescribed forms. We preferred to rely upon the discretionary power of public agents.
This is a plain proposition. The Union, based entirely upon living governments, existing purely under written laws, was incapable of admitting into it the least discretion, as it was impossible to maintain it on any other than an elective basis. Force was as foreign to its maintenance as to its ordination. It is believed by many, that it never could have been permanently ruptured with out force, and by more, that it can never be restored with force. Force is personal discretion, the law of individuals, in direct antagonism to the written law. The British Constitution, as it is called, though its powers and prohibitions are sufficiently defined by various royal charters and parliamentary declarations, is what may be termed a system of political common law-a sort of prescriptive government—the result of a most protracted effort on the part of the people to secure their rights as freemen. There is no pretence of equality, as that word is now understood, in it. The people are not born equal, unless we mean that they have an equal right to breathe the air, to speak their sentiments, and enjoy the blessings of liberty. The foundations of the British Government were all laid in absolutism, from which has been raised its superstructure of laws. From one man it has grown up to be every freeman of the kingdom. From allegiance to that one man, it is now allegiance to laws. So it is in the United States. Yet the two systems widely differ in structure and administration. It took many centuries, involving vast sacrifices of persons and property, to achieve the present Constitution of England, while that of the United States was the work of a few days—the work of States, as free as the Empire of England. We have been parties to both systems. When we separated from our great ancestors, we dissolved all the political relations subsisting between us, but retained everything else. Their experience was ours. Their knowledge was ours. to liberty, all their lessons of adversity in struggling for a free system of laws, their hostility to military power, their language, their literature, their ancient love of freedom and independence, were ours. The States combined to effect their separation. When this was achieved they stood before the world as thirteen nationalities. They subsequently ordained the Union, not by sinking their nationalities, but by creating a government of States-a government of independent authority over individuals within the scope of the powers delegated to it by the States, but in nothing else. This is seen in the act of confederation, and in the fact that it is a government of States. It contains not one dynastic element, not one grant of discretionary authority to its representatives. This was the
principle and the policy of its creation, for the obvious reason that its constituent parties maintained, respectively, perfect civil institutions. The latter embrace quite all the concerns of life. The relations of husband and wife, parent and child, guardian and ward, the collection of debts, the settlement of estates of deceased persons, the tenures of real property, the punishment of crime, the maintenance of the poor, education, charitable institutions, the authorization of corporate bodies, local municipal police, and a hundred other matters of familiar life, come within the scope of the State governments.
It is illogical to claim that these living governments, which created the Union, which confer upon it all the machinery of administration and all means for its maintenance and support, are in any sense subject to the discretionary power of individuals.
Such a conclusion might, possibly, be admissible under a concrete system, but it is clearly inadmissible under that of the Union. Its agents are all elected, directly or indirectly, by the people of the States, in obedience to their respective laws. There is not one approach to it, except through the States. They make its president, its legislature, and, indirectly, its judiciary. They give up their citizens to constitute its army and navy. Without them, it is nothing. It is the law, and the only law, of their being. They are its constituents, not as a people, but as so many independent nationalities.
It requires but a moment's reflection to see that, under such a system, the laws must, at all times, be supreme over individuals. It is unquestionably better that it should be so in every government, but absolutely necessary under this, for the obvious reason, as we have stated, that the Union is the law of the States and not of the people.
Exactly the opposite of this theory of the Union has been its administration during the last three years. Its law has been treated as a cumbrous, heavy weight, and its strict maintenance punished as treason to the Government. Patriotism has been made to consist in upholding the action of persons in direct opposition to it. Those who would show the least regard for its obligations and the greatest contempt for its solemn injunctions, have been ost honored and trusted.
We have passed through years of great political trial. The in. stitutions of the country have been put to a severe test indeed. It was not enough that we should meet and overcome the military force which assailed and sought to overthrow them. We had a character as a free people, as well as a government of laws, to uphold. We could not sustain the latter and give up the former. Our enemies are those who violate our laws, who set aside the Constitution, no matter on what pretext. Our institutions were put upon trial. Their practical utility must undergo the terrible test of a widespread civil war. The question was, whether the laws should prevail over the illegal and treasonable action of individuals. We must determine not only who are the open, but also the concealed enemies of the Union. He is quite as much an enemy who transcends the authority of the Union, professing to sustain it, as the rebel who openly defies its authority. We have no right to make war for anything else than the enforcement of the laws, as we have no right to punish rebels for anything else than their violation. If we do not ourselves know what our institutions are, or, what amounts to the same thing, permit public agents to modify them at will, then it is clear that we cannot determine what is loyalty on the one hand or treason on the other.
We are confident that our political bankruptcy is due, not to the defects of our institutions, but to the dominion of great popular errors, which have made it impossible, for the moment, to say. whether the Administration at Washington or Richmond have done us most harm. Pride, ambition, and ignorance have ever warred against free government. What we have said of these passions in England is quite applicable to us. The English people have repeatedly done just what we are doing—and they have done again just what we shall yet do—they have vindicated the supremacy of their free system of laws over all personal discretion.
In this view, our comprehensive and damaging mistakes and omissions, during the present war, may be charged to non-appreciation of what was required of us rather than to defects of our system, or inability or indisposition to maintain it in all its legal force and integrity.
Good practical government may unquestionably exist, embra