the whole kingdom of England into so many military jurisdictions. These men, assisted by commissioners, had power to subject whom they pleased to decimation, to levy all the taxes [see recent proceedings of General Hugh Ewing in Kentucky, and like proceedings in Missouri and other States] imposed by the Protector and his council, and to imprison any person who should be exposed to their jealousy or suspicion; nor was there any appeal from them but to the Protector himself and his council. Under color of these powers, which were sufficiently exorbitant, the major-generals exercised authority still more arbitrary, and acted as if absolute masters of the property and person of every subject. All reasonable men now concluded that the very mask of liberty was thrown aside, and that the nation was forever subjected to military and despotic government, exercised not in the legal manner of European nations, but according to the maxims of Eastern tyranny. Not only the supreme magistrate owed his authority to illegal force and usurpation, he had parcelled out the people into so many subdivisions of slavery, and had delegated to his inferior ministers the same unlimited authority which he himself had so violently assumed."

Perhaps no chief of a state ever made more sanctimonious professions of friendship for the people, or more repeated promises to preserve and maintain the civil establishment, than Cromwell. If he exercised absolute powers, it was necessary, he claimed, in order to put down "disloyal" persons. Without the time or disposition to enter at large into the enormous wrongs of the Protector's government, one great fact is apparent, that he was not only the chief of a Puritan faction, but his administration of the state was so conducted as to practically exclude from the body politic every subject who did not enter fully into his policy. All such persons were regarded and treated as "disloyal" to the government. It is not difficult to see from this basis how readily and conclusively the right was established to forage on all those who did not either really or nominally sustain his "God-ordained Protectorate." He had made ample provision for carrying out his work of oppression and confiscation, by parcelling out the people into military sections, and setting over each a major-general.

The employment of the civil establishment, even through the

answer his purpose. judicature to render either safe or effective.

most pliant of agents, was too cumbrous, heavy, and uncertain to There is always too much light in courts of their employment in works of oppression "An army," on the other hand, says Hume, "is so forcible, at the same time so coarse a weapon, that any hand which wields it may, without much dexterity, perform any operation and attain any ascendant in human affairs."

It is hardly necessary to add, that neither persons nor prop. erty have ever been respected under the government of military law.

Mr. Webster says: "We have no experience that teaches us that any other rights are safe where property is not safe. Confiscations and plunder are generally, in revolutionary commotions, not far before banishment, imprisonment, and death. It would be monstrous to give even the name of government to any association in which the rights of property should not be completely secured.

The English Revolution of 1688 was a revolution in favor of property, as well as of rights. It was brought about by the men of property, for their security; and our own immortal Revolution was undertaken not to shake or plunder property, but to protect it."

The civil establishment, under every government, represents and enforces the legal rights of the whole people, while the military establishment, under every known system, has been found practically to represent a faction. It is the very law of faction. It bears complete resemblance, in all its features and in all its actions, to a faction. Impatient of control, unruly, dictatorial, and uncompromising, it commands where expostulation would be better, and punishes where restraint alone is needed. We cannot do better in illustration of this idea than again to summon Mr. Web

ster:

Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others, to keep off from us, the more liberty we have. The working

of our complex system, full of checks and restraints on legislative, executive, and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards thrown around individual rights and interests. That man is free who is protected from injury."

This power of protection exists solely in the law. Beyond the law it is all despotism. Revolutions involving the mere overthrow of one dynasty and the substitution of another, which takes up the old system of laws and enforces them, are of little comparative consequence. Beyond the derangement of business, for the day, and the displacement of one set of officers for another, their influence is scarcely felt. We may, without any extravagance, denominate our periodical elections as so many constitutional revolutions. They are important only as they involve greater or less fidelity to the law, in those who come in and those who go out of office. It is certainly a weak point in the system, that in the nature of things, the highest order of statesmanship is hardly eligible to the highest dignities of the state. The very term, "popular elections," indicates the necessity of giving one ear, if not both, to policy. He who can get the most votes is a better man in the judgment of partisans than he who is most learned, honest, truthful, and experienced in the conduct of public affairs. Policy is far more potent than the law. So we have found it. When it demanded the suspension of the civil establishment and the enforcement of martial law, we promptly gave up the one and sanctioned the other. Nothing was more common in the earlier stages of the present rebellion than for public writers to enter solemn protests against the enforcement of martial law, in the State of New York, for instance, while they justified its exercise in the bor der States, whose rights rest upon precisely the same foundations as those of the people of New York. It was policy that dictated those protests. It was not principle, because, had they been governed by its rules, they would never have justified so gross and clear a violation of them.

The minority report by Mr. Justice Woodbury, of the Supreme Court of the United States, in the case of Luther against Bordan

embraces a very full and accurate review of the power of martial law:

"This is no new distinction in judicial practice any more than in judicial adjudications. The pure mind of Sir Matthew Hale, after much hesitation, at last consented to preside on the bench in administering the laws between private parties under a government established and recognized by other governments, and in full possession de facto of the records and power of the kingdom, but without feeling satisfied on inquiring, as a judicial question, into its legal rights. Cromwell had gotten possession of the government,' and expressed a willingness to rule according to the laws of the land' by 'red gowns rather than red coats,' as he is reported to have quaintly remarked. And this Hale thought justified him in acting as a judge. (Hale's Hist. of the Com. Law, p. 14, Preface.) For a like reason, though the power of Cromwell was soon after overturned, and Charles the Second restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being. Grotius virtually holds the like doctrine. (B. I., ch. 4, sec. 20, and B. II., ch. 13, sec. 11.) Such was the case, likewise, over most of this country, after the Declaration of Independence, till the acknowledgment of it by England in 1783. (3 Story's Com. on Const., §§ 214, 215.) And such is believed to have been the course in France under all her dynasties and régimes, during the last half century.

"These conclusions are strengthened by the circumstance, that the Supreme Court of Rhode Island, organized since, under the second new constitution, has adopted this principle. In numerous instances, this court has considered itself bound to follow the decision of the State tribunals on their own constitutions and laws. (See cases in Smith v. Babcock, 2 Woodb. & Min.; 5 Howard, 139; Elmendorf v. Taylor, 10 Wheat. 159; Bank of U. States v. Daniel et al., 12 Peters, 32.) This, of course, relates to their validity when not overruling any defence set up under the authority of the United States. None such was set up in the trial of Dorr, and yet, after full hearing, the Supreme Court of Rhode Island decided that the old charter and its legislature were the political

powers which they were bound to respect, and the only ones legally in force at the time of this transaction; and accordingly convicted and punished the governor chosen under the new constitution for treason, as being technically committed, however pure may have been his political designs or private character. (Report of Dorr's Trial, 1844, pp. 130, 131.) The reasons for this uniform compliance by us with State decisions made before ours on their own laws and constitutions, and not appealed from, are given by Chief-Justice Marshall with much clearness. It is only necessary to refer to his language in Elmendorf v. Taylor, 10 Wheat. 159. Starting, then, as we are forced to here, with several political questions arising on this record, and those settled by political tribunals in the State and General Government, and whose decisions on them we possess no constitutional authority to revise, all which, apparently, is left for us to decide is the other point-whether the statute establishing martial law over the whole State, and under which the acts done by the defendants are sought to be justified, can be deemed constitutional.

"To decide a point like the last is clearly within judicial cognizance, it being a matter of private personal authority and right, set up by the defendants under constitutions and laws, and not of political power, to act in relation to the making of the former.

"Firstly, then, in order to judge properly whether this act of Assembly was constitutional, let us see what was the kind and character of the law the Assembly intended in this instance to establish, and under which the respondents profess to have acted.

"The Assembly says: The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is hereby declared to be in full force until otherwise ordered by the General Assembly, or suspended by proclamation of his excellency the Governor of the State.' Now, the words 'martial law,' as here used, cannot be construed in any other than their legal sense, long known and recognized in legal precedents as well as political history. (See it in 1 Hallam's Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts Martial, 33.) The legislature evidently meant to be understood in that sense by using words of such well-settled construction, without any limit or qualification, and covering the