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license than individuals; while the difficulties of reformation are obviously greater.
It may be stated as a never failing principle, that the mainteance of a free system of laws is impossible, by any other than an exclusive civil administration. There can be no compromise between the two estates; for the simple reason that their powers are unequal. Military government is absolute in its very nature. It has no deliberative features. It is a single person; a law in itself, with all the powers necessary to its enforcement.
But it is urged, that a government of laws, in the sense here described, is also practically impossible; that every state must enter into the great family of nations, and adopt for its government international rules and regulations; and that, in order to preserve the rights and dignities of a state, it is compelled to maintain an army and navy. The absence of these agencies, it is said, would certainly invite aggression and produce evils superior to any to be apprehended from the exercise of military power.
If these considerations have any force at all, they go to the extent of proving that military law, in the present condition of the world, is a sort of necessity—that we cannot maintain government without its distinct recognition as a political element of the state. This results, not from the condition of public sentiment here, but from the fact that we are, as a nation, drawn into association with others, who are not as honest as they might be. It follows, of course, that the American people, by the force of circumstances, cannot be permitted to maintain a government of their choice.
It is true, that as a nation, we must take our place in the family of nations, and subscribe to the code of general laws adopted for the government of all; that we must have an army and navy; that we must be prepared to meet aggression and repel invasion. All this is suggested by wise precaution. But it does not follow, that it may not be done under the exclusive direction of the civil power. Such was the design of the Union. No other principle of government has ever been recognized in this country. It is this principle which has distinguished ours from the Continental systems. Its grand agency is the judiciary. The range of its duties are co. extensive with the jurisdiction of the state.
There is, undoubtedly, great virtue in the popular enthusiasm of the day, in behalf of the Government of the Union. Its preservation, in all its integrity, is an object dear to every citizen. We want it all, just as it was ordained. We want it as a means to an end. Its restoration, simply because it was our government, under which we had been most prosperous and happy, is not enough. We want it, bcause it was a free government—an exclusive civil government—with vast powers for doing good, when honestly administered. We want it, because it was a standard political system, with vastly more capacity to benefit mankind than to assure peculiar advantages to our people.
We have placed ourselves under some obligations to all the world. It has been our interest to invite emigration hither, because we possessed a great continent, a large portion of which was unproductive. Our labor was disproportioned to our territories.
We called our country an asylum for the oppressed. We proclaimed everywhere, that our civil institutions were as free as the air. We opened wide the doors to citizenship; and millions entered, and millions more, yet unborn, we supposed, would come to join us in the great mission of free government. That mission became sacred, far beyond the range of present life. It was for the future. It can succeed only on the basis of the strict maintenance, at all times, of the supremacy of the civil over the military power.
One of the most striking and fatal popular errors of the day, is that which justifies the exercise of extra-constitutional powers, on the alleged ground of necessity. This is a pervading and damaging political heresy. It is an impeachment of the whole scheme of government, a declaration of its incapacity to answer the simplest purposes of its creation. A nation of laws, so deficient in foresight as to render their abrogation a necessity, on the first trial of their strength and efficiency, is certainly not worth preserving. If the Union could be maintained only by the overthrow of civil liberty, we do not perceive the wisdom of the sacrifices we have made in its behalf. These sacrifices go for nothing, if not offered up on the shrine of free government. To admit the right of our political agents, in a period of trial, to substitute their laws for ours, their discretion, no matter with what motive, for the deliberate judgment of the States and the people, would be a confession not only that our institutions had entirely failed, but that we had authorized those agents to institute government for us. There is no way by which this conclusion can be avoided. And yet there are great numbers of the people who justify the almost absolute exercise of discretionary power on the part of the President and others under himpower not confined to military operations, but of a legislative and judicial character. Taxes have been levied and collected. Property has been confiscated. Persons have been arrested, tried, and convicted, or held in prison, at the mere will of provost marshals and military commissions. These things too are of daily occurrence. They show how completely the civil administration has been subordinated to the military, in every part of the Union.
It would be extraordinary virtue, if the civil power, in such a condition of things, should retain its wonted purity and integrityif it should escape the evil influence of that general demoralization, which never fails to follow such exhibitions of public disorder and anarchy. The wonder is, with such fearful examples before us, in connection with the great disasters of the war, the derangement of business, the exhaustion of national credit,' and the almost universal loss of confidence in the general administration, that we are able to exhibit so much tenacity of purpose and real devotion to the free system of laws we have so recklessly abandoned.
1. “Soch attention was paid to this charter by our generous ancestors, that they got the confirmation of it reiterated thirty several times, and even secured it by a rule which seems in the execution impracticable. They have established it as a maxim, that no statute, which should be enacted in contradiction to any article of that charter, can have force or validity. But with regard to that important article which secures personal liberty, so far from attempting, at any time, any legal infringment of it, they have corroborated it by six statutes, and put it out of all doubt and controversy. Ifin practice it has often been violated, abuses can never come in place of rules; nor can any rights or legal powers be derived from injury and injustice. But the subject's title to personal liberty not only is founded on ancient, and, therefore, the more sacred laws: it is confirmed by the whole ANALOGY of the government and constitution. A free monarchy, in which
every individual is a slave, is a glaring contradiction; and it is requisite, when the laws assign privileges to the different orders of the state, that it likewise secure the independence of all the members. If any difference could be made in this particular, it were better to abandon even life or property to the arbitrary will of the prince, nor would such immediate danger ensue from that concession, to the laws and to the privileges of the people. To bereave of his life a man not condemned by any legal trial, is so egregious an exercise of tyranny, that it must at once shock the natural humanity of princes, and convey an alarm through the whole commonwealth. To confiscate a man's fortune, besides its being a most atrocious act of violence, exposes the monarch so much to the imputation of avarice and rapacity, that it will seldom be attempted in any civilized government.
“But confinement, though a less striking, is no less severe a punishment; nor is there any spirit so erect and independent as not to be broken by the long continuance of the silent and inglorious sufferings of a jail. The power of imprisonment, therefore, being the most natural and potent engine of arbitrary government, it is absolutely necessary to remove it from a government which is free and legal.”—Home's History of England.
"Ashby, the king's sergeant, having asserted, in a pleading before the peers, that the king must sometimes govern by acts of state as well as by law; this position gave such offence that he was immediately committed to prison, and was not released but upon his recantation and submission.”-loid, vol. vi. p. 250.
2. “What is meant by the constitutional currency,' about which so much is said ? What species or forms of currency does the Constitution allow, and what does it forbid ? It is plain enough that this depends on what we understand by currency. Currency, in a large, and perhaps in a just sense, includes not only gold and silver and bank notes, but bills of exchange also. It may include all that adjusts exchanges and settles balances in the operations of trade and business. But if we understand by currency the legal money of the country, and that which constitutes a lawful tender for debts, and is the statute measure, then undoubt edly, nothing is included but gold and silver. Most unquestionably there is no legal tender, and there can be no legal tender, in this country, under the authority of this Government or any other, but gold and silver, either the coinage of our own mints, or foreign coins, at rates, regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly probibited from making anything but gold and silver a tender in payment of debts ; and although no such express prohibition is applied to Con. gress, yet, as Congress has no power granted to it, in this respect, but to coin money and to regulate the value of foreign coins, it clearly has no power to substitute paper, or anything else, for coin, as a tender in payment of debts and in discharge of contracts. Congress has exercised this power fully in both its branches. It has coined money, and still coins it; it has regulated the value of foreign
coins, and still regulates their value. The legal tender, therefore, the constitutional standard of value, is established, and cannot be overthrown. To overthrow it would shake the whole system. .. .. The constitutional tender is a thing to be preserved, and it ought to be preserved sacredly, under all circumstances._WEBSTER,