That other Governments, including England, with two or three Continental exceptions, have abolished martial law, is no argument against its legal existence here. We must go to our own records to prove it to be one of the institutions of our society. If we cannot find its authorization there, it is clearly a usurpation. The President says he is authorized to enforce its powers in time of war. Its origin is, then, war. It had been abolished in England long before the Revolution. It had of course been abolished in this country at the same time. It made no part of the institutions of the States when they adopted the Constitution. Even military law, except strictly in the military service, and confined exclusively to the preservation of discipline, was entirely unknown in both countries. This principle is illustrated in a case which originated at Fort Niagara, in the State of New York. A soldier committed an offence within the jurisdiction of the fort, and while strictly in the military service. He was indicted by the civil authorities. It was claimed that it was an offence cognizable only by military tribunals. The court held that Fort Niagara, though a post occupied by the troops of the United States, had never been conveyed to the latter so as to exclude the jurisdiction of the State-that the United States could acquire jurisdiction within the limits of a State only by positive cession. was argued in the case, that Fort Niagara was held by the British authorities at the close of the war, and surrendered to the United States; and that the State, therefore, never had acquired jurisdiction of its grounds. Against this plausible reasoning the court opposed the great doctrine of State sovereignty and independence.

It

We allude to this event to show how the authority of the United States was regarded at the time, rather than to illustrate the powers and duties of the Union or the States "in cases of rebellion." If the former can gain jurisdiction within the territorial limits of the latter only by cession, it determines, clearly enough, at least, the identity of the States as a governing power. Chief-Justice Taney says: "Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority." So, unquestionably, a State, finding its civil and military authority insufficient to put down armed insurrection or rebellion, may call to its aid the military arm of the

Union. Such a call is its cession of jurisdiction to the latter within the limits of the State. The preservation of the civil authority of the State and the political authority of the Union is the end to be attained.

How, then, is it, that the President may, under such circumstances, take any measure which he may think will best put down rebellion? Is he clothed with power not only to put down rebellion, but to suspend the civil institutions of the State, which he was called upon to sustain and uphold? Does rebellion in one or more States, at the option of the Administration, transform the Union into an army and navy? Certainly so, if he may declare martial law and exercise its powers; for martial law, as he has enforced it, is a complete supersedeas of all civil authority. But he is not content with martial law. Hume, speaking of this species of government, says:

"The Star Chamber and High Commission and court martial, though arbitrary jurisdictions, yet had some pretence of trial, at least of a sentence; but there was a grievous punishment very familiarly inflicted in that age (Elizabeth), without any other than the warrant of a SECRETARY OF STATE or of the privy council, and that was imprisonment in any jail, and during any time, that the ministers should think proper. In suspicious times all the jails were full of prisoners of state, and these unhappy victims of public jealousy were sometimes thrown into dungeons and loaded with irons, and treated in the most cruel manner, without being able to obtain any remedy from law. This practice was an indirect way of inflicting torture."

This step, beyond the jurisdiction and forms of martial law, has been taken, by the existing Administration, even so accurately as to make the historian's description of the practice of the English queen's government an exact account of the present Government of the United States. This little picture would be incomplete without another extract from the same learned author, touching the offices of one or two other institutions of Elizabeth's administration. He says:

"One of the most ancient and most established instruments of power was the Star Chamber, which possessed an unlimited and

discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offences, contempts, and disorders, that lay not within the reach of the common law.

"There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. But martial law went beyond

even these two courts, in a prompt and arbitrary and violent method of decision. Whenever there was any insurrection or public disorder, the crown employed martial law, and it was during that time exercised not only over the soldiers, but over a whole people. Any one might be punished as a rebel or as an aider and abettor of rebellion, whom the provost martial or the lieutenant of a county or their deputies pleased to suspect.

It must be remembered that these things occurred in England before martial law had been abolished, through the Petition of Right, which declares that "no man shall be prejudged of life or limb against the forms of the Great Charter," "that no man ought to be adjudged to death, but by the laws established by this realm, either by the custom of the realm, or by act of Parliament, and that the commissions for proceeding by MARTIAL LAW should be revoked and annulled, lest by color of them any of his majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land;" and long before the feeble colonies of this country had become objects of serious political interest. So that so far as the American people are concerned, they are indebted to Mr. Lincoln's Cabinet for their first practical lessons in this species of arbitrary government. Military law, as it is understood and enforced in England, would answer none of the ends sought to be accomplished; because that would leave the judiciary perfectly free to exercise absolute control over every pretended offence, committed outside of the military service. There is no possible way open to the latter, under the British system, by which, in any con

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. 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. Successful 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.