action of the constituted authorities of a sovereign member of the Union. The case did not, in other words, come within the legal jurisdiction of the United States. It was for the State of Rhode Island alone to determine whether she would recognize an exclusive military government over her people, or not.

We allude to this phase of our compound system, to show that there are more powers than one to be consulted, in cases involving the unwarranted exercise of military authority in this country. That of the United States is limited to the federal army, within the scope of the laws, and to the single end of preserving discipline therein. On this subject we give entire, at the close of this chapter, the minority report of the judges, by Mr. Justice Woodbury, in the case of Luther vs. Bordan, because it is a full exposition of martial law, and its legal accuracy is not questioned by the majority decision, the latter resting the case exclusively on the ground that they had no right to go beyond the action of the authorities of a sovereign State. This report will be found very full in argument and authority, and will well repay, in these times, a careful reading. In further illustration of the subject, we give entire the exposition of Lord Loughborough, of what in England is regarded as the relation of martial law to the civil establishment of the kingdom.

Having traced out the origin of martial law (or military law, or the war power, as the arbitrary enforcement of military government has been indifferently denominated), its decline, under the gradual enlargement of the civil establishment, to its final overthrow, at the close of the sixteenth and commencement of the seventeenth centuries, we have now only to refer to the ordinary practice of the existing Administration to put the reader in possession of all that is necessary to enable him to form an enlightened judgment upon the current events of the day touching the maintenance of our free system of laws. It is quite unnecessary to reiterate what we have already stated upon this point. The exercise of martial law, to the utmost limit of its enforcement in England, up to the year 1688; its actual control over all persons at will, both in and out of the military service; its extension to the every-day exile or transportation of persons beyond the limits of the authority of the

United States; its levy and collection of taxes; its arbitrary imposition of fines; its arrest and imprisonment of citizens without any warrant of law; its suppression of free speech, the press, religious freedom, and trial by jury; its confiscation of estates; its summary execution or murder of persons; and, finally, the open justification of all these acts, by high officers of state, are simple historical facts. It matters little, to a suffering people, by whose direction or order, or in what name, or by what pretended authority, these things have been done. They stand as historical events, justified by those who have caused them, and the power that commanded them is still supreme over public affairs. We will not undertake to argue the question whether they are legal or illegal. To any man of common understanding, they must be received as conclusive evidence of great depravity or great ignorance.

It is too late in the progress of free government to argue the question whether the governor of a State is authorized, by the existence of war or rebellion, to become a despot. We must submit tamely to the surrender of all that makes a nation of freemen, or we must vindicate our rights, enforce our laws, and cherish our ancient habits, customs, and traditions. We cannot command the respect of the world and permit such despotic institutions as martial law to govern our people. If we prefer a despotism to civil liberty, let us have it in its usual forms, and with its usual responsibilities. We cannot well suffer the agonies of a struggle for absolute rule. It would be far better, at once, to accept the new order, and aid to clothe it with the dignities and formalities of dynastic government.

There are excuses to be urged in behalf of those who choose to submit to the arbitrary orders of a great military commander. Mankind are often disposed to yield a sort of homage to those whose career marks their superiority over their fellow men. The history

of the world is full of instances of this nature, and we all dwell upon them with peculiar interest, and often feel our sympathies. turning to those whose brilliant deeds have raised them to dynastic honors, even at the expense of the liberties of the people.

We are not permitted to avail ourselves, however, of this species. of justification for abandoning that noble structure of free government, under which we have lived and prospered from the very first

day of our occupation of this continent. All our great men, without a single exception, have evinced the most earnest and profound love of our institutions. We remember no instance, in the whole history of the country up to the year 1861, in which a great public man has not shown his entire devotion to our free system of laws, and made their strict maintenance the first and last duty of every good citizen. Precisely when we had most need of fidelity and patriotism we have found both most wanting, among representatives and people. The Union, menaced by widespread and thoroughly organized rebellion against its authority, not by detached masses of the people, but by great and powerful constituent States, acting on the theory of the right of secession, we have undertaken to enforce its powers over all its original territories, not by the command and direction of the civil establishment, but solely by the command and power of the military. It is impossible to overlook the great fact that the employment of civil officers has ceased to be a perceptible feature in the general administration of the Union. Those duties which, with rare exceptions, under the British system, have not, for more than five hundred years, been intrusted to the military, are now habitually discharged by that arm of the public service. We venture to say that there is not one single general officer engaged in active service who, judged by English or federal law, has not made himself liable to infamous punishment through the courts of civil judicature; nor is there the least question but those courts have legal jurisdiction of every such offence. But the actual power is all in the hands of the military; at precisely the time, too, it must be borne in mind, when the people are called upon to submit to the heaviest sacrifices to uphold the authority and enforce the laws of the Union! Just when we require the greatest integrity as an example to offenders, and as a means of uniting and strengthening the friends of the Government, precisely then we are made to feel that other than patriotic considerations control the councils and direct the policy of the nation. It is surely not martial law and military government, extended over the "loyal" people of this country, which will best put down the " disloyal," and restore the supremacy of the laws. We cannot comprehend the wisdom of the policy which commands that if one State turns against the Union

the authorities of the latter should disfranchise all the others, as the best means of restoring order and good neighborhood; that if one section renounces its obligations, the others should be deprived of the power of fulfilling theirs.

If the seceding States of the South were guilty of a great wrong in resisting the authority of the confederation, how is it possible to make the proof of it available to us otherwise than by a faithful and honest effort, on our part, to restore that authority? If we consent that the laws shall be set aside, from whatever motive or on whatever pretext, are we less guilty of disobedience to their authority and commandment than the people of the seceding States? There is surely nothing else to maintain than our free government. Mr. Webster says: "Whatever government is not a government of laws is a despotism, let it be called what it may." This is a plain proposition. If it is not the law that governs, what is it but a man? Hence we find the same great statesman to lay down this principle in connection with the maintenance of a free system of laws :

Nothing can be more repugnant, nothing more hostile, nothing more directly destructive, than excessive, unlimited, and unconstitutional confidence in men; nothing worse than the doctrine that official agents may interpret the public will in their own way, in defiance of the Constitution and laws; or that they may set up anything for the declaration of that will except the Constitution and the laws themselves; or that any public officer, high or low, should undertake to constitute himself, or to call himself, the representative of the people, except so far as the Constitution and laws create and denominate him such representative.'

This language is equally plain and conclusive. The subject under discussion was the exercise of executive powers by the President of the United States. Those powers are all expressly defined. To go beyond their authority is "repugnant, hostile, and destructive to the Constitution and laws of the state; " for when "official agents" go beyond that authority, then surely we have not a government of laws, but a despotism, "let it be called what it may." The inquiry is returned to us, can we be ranked as vindicators of the Constitution and laws of the Union, so long as we permit our

official agents to set up anything else as the governing power over the people?

Do we come to the work with clean hands to enforce the laws, or seek the restoration of friendly intercourse and political brotherhood between the North and the South, when throughout all the loyal States we find the civil establishment to have been superseded or driven out by the military?

Can we be considered Union men, battling for the preservation of the Constitution and the enforcement of the laws, until we have stricken down that dominant military power which now governs all the "loyal" States?

If we are contending for anything, it is for the civil establishment. It is a great misfortune for a free state ever to be compelled to call into being a military force of any considerable numbers, and a great crime to permit its employment in any other way than in aid of and obedience to the orders of civil tribunals.

A free state can never have any sufficient occasion for the enforcement of martial law, for when that species of arbitrary and irresponsible government is really necessary, the evidence will be conclusive that it has ceased, to all practical intents and purposes, to be a free state. A despotism is made by the exercise of original and supreme power by the chief of a state. It consists in the simple fact that such power may be exercised. It would be not less a despotism in the event of the assumption of supreme power, in particular cases, whether the chief should enforce the former laws of the community or not. Cromwell governed through estab lished English tribunals and laws long after his assumption of dictatorial powers. Hume says, on this subject, that "all the chief offices in the courts of judicature were filled with men of integrity; amidst the violence of faction the decrees of the judges were upright and impartial; and to every man but himself, where necessity required the contrary, the law was the great rule of conduct and behavior.”

Nobody will question the completeness of the revolution which conferred upon the Lord Protector dictatorial and despotic powers. The process of its exercise is admirably described by the same learned historian :

"The Protector instituted twelve major-generals, and divided