aging power, its exercise, far beyond what was necessary to preserve discipline and order in the military service, was continued till the time of Sir Edward Coke, when it received its final blow, from which it has never entirely recovered.

It is a remarkable fact—at least very remarkable to the American people that martial law, as enforced in England, after the treaty of Runnymede, was a weak, harmless power, when compared with the exercise of military authority in this country during the last three years. It was absolute over all persons in the army, and assumed that certain persons, not in the service, but acting against the service, were thereby brought within the jurisdiction and gov‐ ernment of martial law. There was no pretence of power to determine crimes against the state, such as treason or other felony. The right to sit in judgment upon the citizen, for any offence, opinion, or speech he might commit or utter, touching the character or conduct of the general administration, was never claimed.

Those who have carefully studied the history of governments, where there have been two acknowledged forces in the state, the civil and the military, need not be told that the latter is constitutionally inclined to extend its powers, during war or civil commotions. This has been especially the case in England even, where there has ever been more distrust of military authority, and a more profound sense of the necessity of keeping it within the strict limits of the law, than in any other country. But with all the robust political health of Englishmen, and their long-established devotion. to civil liberty, their career is full of instances, in which the military power has broken over the boundaries of legal authority, and trampled down, for the day, the civil institutions of the kingdom.

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It is thus seen how war may be as dangerous to a free state, on account of its inherent tendencies to weaken or overthrow the civil establishment, as hostile invasion by a powerful public enemy. In the long struggle of the British people for free institutions struggle, which, all the circumstances of the case considered, evinces more earnest, patient, and profound knowledge of mankind, than is elsewhere to be found in the history of the human familythere is not to be seen one event in time of peace, since the establishment of the existing constitution, which has seriously threatened

the legal authority of Parliament. It has been when the army was employed by the direction and for the civil establishment, that it has extended its powers beyond the authority conferred upon it by the latter. But in every such event there has been, on the part of the people, a prompt, earnest, and resolute rebuke administered to the offending power, and a reassertion of the supreme authority of the civil establishment.

"The army being established," says an eminent English judge, "by the authority of the legislature, it is an indispensable requisite of that establishment, that there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to trial by their officers. That has induced the absolute necessity of a mutiny act accompanying the army." "It is one of the objects of that act to provide for the army, but there is a much greater cause for the existence of a mutiny act, and that is the preservation of the peace and safety of the kingdom; for there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army." "The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty, to make articles of war, those articles are to be for the better government of his forces, and can extend no farther."

These extracts exhibit the structure of the civil establishment in England, and show clearly that the military is held in complete subordination to it. The mutiny act confers jurisdiction to the army over offences committed by persons in a military capacity. Without such a delegation of power, we take it, the army would have no authority, of any kind, to punish persons in its own service. Its power is limited by the act exclusively to such persons -is conferred by the state to that extent only. And then over all is constituted a court, having superior jurisdiction of all those who are a part of the army, in all their different descriptions of officers and soldiers.

The important right to ordain articles of war, existing in the

Crown of England, and delegated by the States to Congress here, can in no event be exercised, in either country, so as to confer jurisdiction upon the army, beyond what is necessary to preserve and maintain discipline. The law here is precisely what it is in England, with this exception: that there is no power in Congress, as there unquestionably is in Parliament, to extend the authority of the army beyond the limits set upon it by the existing British system. That system, in this respect, is ours. All our notions of civil liberty, and what is necessary to maintain it, we inherited from England. We started in our career of independent government on this distinct basis: that as long as the civil establishment can be maintained, it must be absolute over the military. We went farther than this, and maintained that the latter should always be held as an agent of the former, subject to its orders at all times, and that every person in the army, who assumes to exercise original authority, is an offender against the laws, liable to punishment through the courts, and personally liable to every citizen who may be injured thereby. This doctrine has been repeatedly affirmed in England. Extreme punishments have been enforced against military commanders, in cases where there was some difficulty in ascertaining whether the original offence was strictly military in its nature.

The most celebrated, perhaps, of this class of criminal trials, was that of Governor Wall, who, by commission of a court martial, caused a soldier to be flogged, so that he died. Twenty years after the commission of the offence, Wall was tried by the civil authorities, convicted, and executed. The case turned upon a single point, whether the alleged offence of the soldier was strictly military in its nature. This having been determined in the negative, the original trial by court martial could not screen the unfortunate commander, because by that decision the military authority was left wholly without any jurisdiction of the soldier's offence. Lord Coke says: "If a lieutenant or any other that hath commission of martial law in time of peace, hang or otherwise execute any man, by color of martial law, this is murder." What is here meant by the words "in time of peace," is explained by judicial decisions to be "when the courts are open "-when, in

other words, the civil establishment is in full operation. The Count de Lancaster, having been taken in open insurrection, was, by judgment of martial law, put to death; and this, though it was conceded that Lancaster was taken in an armed effort to overthrow the laws, was adjudged murder. The reason assigned by the great English lawyers in the case of the Count de Lancaster, was that the courts were in full operation, with exclusive jurisdiction. of the offence, and that the courts martial could in no case exercise authority over persons outside of the military service. The question of the actual guilt of the offender did not come before the Nor was it a question of jurisdiction between two courts of civil judicature. It was the exercise of illegal authority, by a tribunal which the common judgment of the nation regarded with distrust and aversion, and which the common experience of mankind had found necessary to keep within the strict limits of its constitutional powers. A more extreme illustration of this idea cannot be conceived than that of the execution of Governor Wall, twenty years after the offence had been committed.

court.

The Federal Government has delegated power to Congress to ordain articles of war for the government of the land and naval forces of the United States. The purpose of this grant is too obvious to justify comment. Its language indicates the scope of the authority delegated. It is necessary, everybody admits, to institute separate and positive rules for the government of every military establishment. Hence, even in an elective republic like that of the Union, where the sovereign power, by common consent, remains in the people, whose General Government provides for the periodical return to them of all authority, it was found necessary to ordain for the army and navy distinct and positive regulations, of an arbitrary nature, to the end that discipline and efficiency might be preserved therein. Nobody will question the fact, that these regulations are in conflict, most essentially, with the great principles which underlie a free system of laws. There is no freedom, properly speaking, in military government. Nor can there be any. The best that can be done, is to so construct the political system of the state, that its civil establishment shall authorize and empower the military to do certain things within its own service—

limited exclusively to persons legally enrolled therein-which, by its constitution and the philosophy of the system, can be done nowhere else. But even this authority must be strictly confined to the preservation of discipline; for on no other basis can it be justified, either by logical or analogical reasoning. Every officer, from the commander-in-chief to the lowest subaltern, is accountable to the civil establishment for the manner and extent of its exercise. The military is a creature of the law, and never a judge of the law. Its tribunals are limited by the Constitution of the United States, and by the practice of our own and the British Government, to the narrow sphere of its own service, and in that service, to the simple preservation of discipline.

Another consideration of the subject, it appears to us, is entitled to great weight in connection with the federal system. The authority of the Union is limited to certain specific grants, the States having retained to themselves all the powers of government not expressly delegated. The Supreme Court of the United States, in the case of Luther vs. Bordan, growing out of what is known as the Dorr Rebellion, stated expressly that they would follow the decisions of the State courts in all questions which concern merely the constitution and laws of the State.

It will be remembered that the legislature of Rhode Island declared martial law within the limits of the State; and that its officers, under the authority thus given them, not only assumed exclusive military jurisdiction over persons within the service, but enforced absolute rule over all the people. The case was an extreme one, indeed; for martial law, as enforced, had not been thus enlarged, since the presentation and enactment of the Petition of Right, in England. It was carried out without any pretence of aid to the civil authorities, without any apparent recognition of the existence of a civil establishment at all, but by all the forms of arrest without warrant, oath, or affirmation, by breaking into houses, where no alleged offenders were found, and acting exclusively under military orders of the State.

Chief-Justice Taney, without giving any opinion upon the legality of the proceedings, in rendering the decision of the court, declares that the United States have no power to go behind the