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created for the very purpose of justifying the assumption of absolute power. They indicate the process by which the free system of laws, under which the American people have lived and prospered for more than two centuries, has been swept away, almost unnoticed, within the few months of our criminal civil war.

It must be confessed, in reviewing this degrading picture of public affairs, that there has been no midnight intrigue and deception in the work. This is the President's view of his powers: "As commander-in-chief of the army and navy in time of war, I have the right to take any measure which may best subdue the enemy."

It is equally candid and explicit. If trial by jury, though an explicit constitutional right, should interfere with the efficiency of the army, he may suspend it. If the judicial arm of the States and of the Union, in his judgment, should render the military less effective, he may set it aside. If the seizure of private property for public uses without compensation, the arrest and imprisonment of citizens without any process of law, the suppression of the press, of religious freedom, free speech, and the confiscation of estates"," by military commissions, provost marshals and their county deputies, should, in his judgment, be regarded as appropriate war measures, he would have the right to enforce them.

Then comes, from the same exhaustless fountain of despotic power, the right of transportation on the part of the President by order of military commissions-the right to seize a citizen, try him by court martial, sentence him to imprisonment or death, and to commute his punishment by an arbitrary edict, commanding that he be sent beyond the jurisdiction of the United States. It will not do to pass this flagrant outrage upon the people and the Federal Constitution by a reference to one or two prominent cases. It is the regular and every-day practice of the Administration in quite all the border States; and the power is exercised by local commanders and provost marshals, without any supervisory control by the war department. Blackstone, speaking of this gross violation of the plainest rights of the people and of the highest dignities of the state, in the same act, says:

"A natural and regular consequence of personal liberty is, that every Englishman may claim a right to abide in his own country so

long as he pleases; tence of the law.

and not to be driven from it, unless by the senThe king, indeed, by his royal prerogative, may issue out his writ ne exeat regum, and prohibit any of his subjects from going into foreign parts without license. This may be necessary for the public service and safeguard of the commonwealth. But no power on earth, except the authority of Parliament [which is the same as that of the States and the people in this country], can send any subject of England out of the land against his will-no, not even a criminal. For exile and transportation are punishments unknown to the common law; and wherever the latter is now inflicted, it is either by the choice of the criminal himself to escape a capital punishment, or else by the express direction of some modern act of Parliament. To this purpose the great charter declares that no freeman shall be banished unless by the judgment of his peers or by the law of the land. And by the Habeas Corpus Act (that second Magna Charta and stable bulwark of liberties) it is enacted that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the sea (where they cannot have the full benefit and protection of the common law), but that all such imprisonments shall be illegal, and that the person who shall dare to commit another contrary to the law, shall be disabled from bearing any office, shall incur the penalty of a premunire, and be incapable of receiving the king's pardon; and the party suffering shall also have his private action against the person committing, and all his aiders, advisers, and abettors, and shall recover treble costs, besides his damages, which no jury shall assess at less than five hundred pounds.",

So far is this exemption of the subject from exile carried, in England, that the Government has no power to force one of its people to discharge diplomatic or other duties abroad, except persons in the naval and military service, because such a power might be construed into a right of actual transportation.

It must be conceded, if the President has a right to take any measure he may deem proper, in time of war, in order to subdue the enemy, it extends to transportation as well as absolute domestic rule.

That other Governments, including England, with two or three Continental exceptions, have abolished martial law, is no argument against its legal existence here. We must go to our own records to prove it to be one of the institutions of our society. If we cannot find its authorization there, it is clearly a usurpation. The President says he is authorized to enforce its powers in time of war. Its origin is, then, war. It had been abolished in England long before the Revolution. It had of course been abolished in this country at the same time. It made no part of the institutions of the States when they adopted the Constitution. Even military law, except strictly in the military service, and confined exclusively to the preservation of discipline, was entirely unknown in both countries. This principle is illustrated in a case which originated at Fort Niagara, in the State of New York. A soldier committed an offence within the jurisdiction of the fort, and while strictly in the military service. He was indicted by the civil authorities. It was claimed that it was an offence cognizable only by military tribunals. The court held that Fort Niagara, though a post occupied by the troops of the United States, had never been conveyed to the latter so as to exclude the jurisdiction of the State-that the United States could acquire jurisdiction within the limits of a State only by positive cession. It was argued in the case, that Fort Niagara was held by the British authorities at the close of the war, and surrendered to the United States; and that the State, therefore, never had acquired jurisdiction of its grounds. Against this plausible reasoning the court opposed the great doctrine of State sovereignty and independence.

We allude to this event to show how the authority of the United States was regarded at the time, rather than to illustrate the powers and duties of the Union or the States "in cases of rebellion." If the former can gain jurisdiction within the territorial limits of the latter only by cession, it determines, clearly enough, at least, the identity of the States as a governing power. Chief-Justice Taney says: "Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority." So, unquestionably, a State, finding its civil and military authority insufficient to put down armed insurrection or rebellion, may call to its aid the military arm of the

Union. Such a call is its cession of jurisdiction to the latter within the limits of the State. The preservation of the civil authority of the State and the political authority of the Union is the end to be attained.

How, then, is it, that the President may, under such circumstances, take any measure which he may think will best put down rebellion? Is he clothed with power not only to put down rebellion, but to suspend the civil institutions of the State, which he was called upon to sustain and uphold? Does rebellion in one or more States, at the option of the Administration, transform the Union into an army and navy? Certainly so, if he may declare martial law and exercise its powers; for martial law, as he has enforced it, is a complete supersedeas of all civil authority. But he is not content with martial law. Hume, speaking of this species of government,

says:

"The Star Chamber and High Commission and court martial, though arbitrary jurisdictions, yet had some pretence of trial, at least of a sentence; but there was a grievous punishment very familiarly inflicted in that age (Elizabeth), without any other than the warrant of a SECRETARY OF STATE or of the privy council, and that was imprisonment in any jail, and during any time, that the ministers should think proper. In suspicious times all the jails were full of prisoners of state, and these unhappy victims of public jealousy were sometimes thrown into dungeons and loaded with irons, and treated in the most cruel manner, without being able to obtain any remedy from law. This practice was an indirect way of inflicting torture."

This step, beyond the jurisdiction and forms of martial law, has been taken, by the existing Administration, even so accurately as to make the historian's description of the practice of the English queen's government an exact account of the present Government of the United States. This little picture would be incomplete without another extract from the same learned author, touching the offices of one or two other institutions of Elizabeth's administration. He says:

"One of the most ancient and most established instruments of power was the Star Chamber, which possessed an unlimited and

discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offences, contempts, and disorders, that lay not within the reach of the common law.

"There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. . . But martial law went beyond

even these two courts, in a prompt and arbitrary and violent method of decision. Whenever there was any insurrection or public disorder, the crown employed martial law, and it was during that time exercised not only over the soldiers, but over a whole people. Any one might be punished as a rebel or as an aider and abettor of rebellion, whom the provost martial or the lieutenant of a county or their deputies pleased to suspect."

It must be remembered that these things occurred in England before martial law had been abolished, through the Petition of Right, which declares that "no man shall be prejudged of life or limb against the forms of the Great Charter," "that no man ought to be adjudged to death, but by the laws established by this realm, either by the custom of the realm, or by act of Parlia ment, and that the commissions for proceeding by MARTIAL LAW should be revoked and annulled, lest by color of them any of his majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land;" and long before the feeble colonies of this country had become objects of serious political interest. So that so far as the American people are concerned, they are indebted to Mr. Lincoln's Cabinet for their first practical lessons in this species of arbitrary government. Military law, as it is understood and enforced in England, would answer none of the ends sought to be accomplished; because that would leave the judiciary perfectly free to exercise absolute control over every pretended offence, committed outside of the military service. There is no possible way open to the latter, under the British system, by which, in any con

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