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tingency, the military can acquire jurisdiction over civil offences. It is this feature of the system, which more than anything else, marks the transition from feudal or arbitrary rule to the present government of laws. The Star Chamber, High Commission, and court martial are fair expressions of the old law of England—the old covenant which has been superseded by the Christian politics of the present day.
But it is maintained, with some plausibility, that it may not always best subserve the interest of the state, faithfully to execute its laws; that this species of political heresy may be extended to the enforcement of arbitrary orders, even in direct opposition or contravention of its organic laws. Without admitting the propriety or justice of this terrible doctrine, its enforcement surely should be limited, if it is ever recognized, in such manner as never, in the slightest degree, to impair the integrity of the political system. Those who claim it as necessary, in order to preserve the life of the state, assert of course, that its institutions are defective—that they are deficient, at the very time when they ought to be sufficient. In the case of the United States, in the present rebellion, the Administration have assumed not only extra-constitutional powers, but have set aside every constitutional guarantee of the liberty of the people. If they were authorized by overwhelming circumstances to take measures of an arbitrary nature, they must be limited to the first meeting of Congress, and, then, in no case, so as to impair the rights of a single citizen of the republic. The Government could be preserved only by protecting the rights of every man in the country. That was its only great office. Their preservation was the only end in view. We cared not to conquer an enemy, but to make a friend. If we lose free government, it is a poor consolation to reflect that we have won a battle. We can triumph only by convincing the world that we are capable of maintaining a free system of laws; and this we can never do except by subordinating the military, in war and in peace, to the civil power. It is the civil power that makes war against the South. It is the civil power which is struggling for existence and maintenance. It employs the army, and must ever command the army. This command, too, must be absolute. It is the law of the state, and there is no other law.
Battles lost, in the present fearful struggle, have not been our greatest misfortunes. When we surrendered an independent judiciary, and admitted the governing power of circumstances over the most venerable and freest system of laws in existence, we did more to degrade the people of the United States before the world, than could have been done by the loss of a thousand battles. We undertook to trade off the fame and success of a great nation for the transient and criminal honors of martial glory. We preferred the Norman law of conquest and its feudal government, to the Saxon law of liberty, equality, and justice. We would have the dominion of the sword, with all its blood and waste. It was our right. The majority of the people said so. Majority is power. We had the power. Minorities must come to us for terms of reconciliation and peace. There is no magnanimity in politics—certainly none in war! It is a trial of strength, not an issue of fact. We are not debaters, but fighters. We have no civil institutions to save, but an enemy to punish!
We have referred to the conduct of the present Administration, we repeat again, with no intention of discussing its measures, but solely for the purpose of illustrating the principles of free government. There is not a question but that the State and Federal systems were as perfect as it is possible for human intellect and patriotism to make. If we have failed to maintain them, it is our fault, not theirs. In the judgment of many, the Union of the States was in great danger of failure through its elective corruptions. Public demoralization was almost universal. The confidence of the people in the integrity of their agents was greatly impaired. These evils, we believe, have led to the present unfortunate war between the States of the North and the South. It is a war against free government, if not the Union, by both belligerents. War between the States is disunion. It is much to be doubted if the separation could have been effected by any other process; as it is certain that reconciliation is impossible through its agency. There must be reconciliation, or there can be no union. Success. ful war, even to subjugation, is separation with a terrible vengeance. It will not only destroy the principle of union, but the power of maintaining free government in the victorious States.
What we want, in any event, is free government. With that, we cannot fail. It is that we have had. It gave us greater prosperity, more happiness and less misery, than any other people ever had enjoyed. It was, too, the freest system; assured a nearer approach to equality, a more general distribution of labor and capital; it had more inherent elements of strength, political and geographical, more positive power for good, and a higher and nobler mission, than any other. It recognized what we call the institution of slavery-an apparent incongruity, we admit, of which we shall speak in another place; but it was so constituted, that no citizen or State or party could have an anti-slavery mission, for the simple reason, that no citizen or State or party could right fully alter or modify one single law of another State, or one single provision of the compact of Union. It was understood that a violation of this principle would cause a sort of leak in the vessel of state, capable of wasting all that was valuable within. This is no new idea, on the subject of legal government; but it is peculiarly applicable to our compound system, because the Union is a government, not of persons, but of States.
It is this feature of the system which makes it necessary to recognize two legal parties—the people of the States, on the one hand, and federal representatives or agents, on the other—both being amenable to the law. It would indeed be a strange anomaly in a free government, if the people should be held to account, and not the agent or representative. The scheme was based on the idea that both might offend, and that both should be held responsible to the law. It is too common for the former to regard themselves as bound to submit to the dictation of the latter—to confound power with right-to admit, in all cases, the duty of obedience to whatever is exacted, on the part of political representatives. This is not only a great practical error, but one which, if carried out, can hardly fail to overthrow the best popular government which it is in the power of wisdom and patriotism to establish.
It destroys, at once, the equilibrium of the system, by taking away its representative character, and removing from it the principle of accountability, without which it is not easy to see how a government of laws is to be maintained.
Every citizen is clothed with legal authority to make resistance to such laws or ordinances as he may deem to be unconstitutional and therefore void. The judicial department was created expressly to enable him to appeal from the law-making and the executive power. It is the only check he is able to put upon Congress and the President, when his rights are invaded or his liberty taken away by unauthorized legislation or executive acts. The judiciary, in such cases, is not only the state, but the only possible means of avoiding either tame submission to arbitrary laws, on the one hand, or open resistance, on the other.
On this subject, more than any other, we have the most interesting and timely events of British history to aid us. The struggle for the free system of English laws, which commenced under the Saxons, and which can hardly be said to have ended till after the close of the Napoleonic wars, discloses,ʻat every stage of its progress, an inflexible purpose to maintain, at every cost and sacrifice, the complete independence of the judiciary. This has evidently been regarded, from the beginning, as the corner stone and foundation of the political edifice. It has been, indeed, a struggle between the crown and the courts—a struggle for dominion on the one side, and for the right of impartial and independent judgment on the other.
In the days of feudal government, it will be remembered, to the date of Magna Charta, the divine right of the king to reign, and passive obedience, were almost universally recognized. The executive government had all the advantages of prescription and established political habits. Those who have studied the practical events of history, will understand the magnitude and strength of those powers of state. The assailants of the crown came to their work with ideas alone. It was ideas that made war upon the whole scheme of royal prerogatives. It was a war of reason, of philosophy, of rational liberty, against effete, decrepit forms, against blind, stupid convictions, and Asiatic habits and customs. It was this war which gave England the purest and ablest literature, the highest judiciary, and the greatest statesmen, philosophers and historians. It made it apparent to all the world, that no mere despotism, however protected by bayonets, can maintain itself against the forces of reason and the searching power of truth.
It is a singular feature of American and English history, that while the people of this country, since the establishment of the Government of the Union, have manifested a tendency at least to increase the powers of their chief magistrate, and to sustain and justify the exercise of almost every act of doubtful constitutional authority; the people of England have struggled through centuries to strip their king of quite all authority, to increase the powers of their legislature, and to make their judiciary an independent tribunal having jurisdiction over both.
This anomaly is the more remarkable, because the people of the States, especially during the last thirty years, have continued to withdraw authority from their governors; insomuch, that in many cases, they have left little more than a name to distinguish the office.
But there is a lesson of profound interest to the American people and to the friends of free government everywhere in these events of history. They disclose the workings of two governments, both based upon principles of popular liberty, both successful, beyond all precedent, in whatever marks the prosperity of the people, in education, industry, enterprise, the distribution of labor, the accumulation of wealth, both starting substantially upon the same mission, but suddenly, as if controlled by some supernatural power, thrown as widely from parallel lines of administration as those which mark the governments of the Asiatic and European races. The point of separation is exactly where we abandoned the judiciary.
The exercise of unconstitutional powers by the executive and legislative departments was a mere political offence, so long as the judiciary remained in freedom; because the right and the agencies of punishment still existed. So long there was the means to hold official delinquents to account. Their enforcement might, indeed, have been difficult, and in many cases impossible. The law was violated, but not set aside. The machinery of government was perfect, though the engineer had neglected his duties.