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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 him— power 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 occurThey show how completely the civil administration has been subordinated to the military, in every part of the Union.

rence.

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,2 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.

A.

NOTES.

"SUCH 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. If in 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.”—HUME's History of England.

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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.”—Ibid, 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 undoubtedly, 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 prohibited from making anything but gold and silver a tender in payment of debts; and although no such express prohibition is applied to Congress, 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 ten

der is a thing to be preserved, and it ought to be preserved sacredly, under all circumstances."-WEBSTER.

CHAPTER V.

MARTIAL LAW.

THE GUARDIANS OF CIVIL LIBERTY SHOULD UNDERSTAND WHAT IS MARTIAL LAW-ITS ORIGIN AND ORIGINAL POWERS IN ENGLAND-THE EXTENSION OF THE CIVIL ESTABLISHMENT-MARTIAL LAW CONFINED AFTER THE GREAT CHARTER EXCLUSIVELY TO THE MILITARY SERVICE-ITS COMPLETE SUBORDINATION TO THE CIVIL POWER BY THE PETITION OF RIGHT-THE ENGLISH SYSTEM OURSMARTIAL LAW IN THE UNITED STATES-REVOLUTIONS—CROMWELL- -HIS MILITARY GOVERNMENT THROUGH TWELVE MAJOR-GENERALS-WHERE LAWS FAIL IT IS A DESPOTISM-EXPOSITION OF MARTIAL LAW BY THE SUPREME COURT OF THE UNITED STATES-ITS EXPOSITION IN ENGLAND BY LORD LOUGHBORough.

A PEOPLE who have undertaken to maintain free government, and have held themselves up before the world, in no very modest speech, as the peculiar guardians of civil liberty, ought to understand exactly what is martial law, military law, and civil authority. If we look back upon the career of the Anglo-Saxon race, these three widely different phases of government become as distinct as the reign of the hostile families who have been raised at times to the throne of England. They mark, indeed, three distinct stages of progress, from the Norman Conquest to the time of the execution of the Great Charter, as the first; to the enactment of the Petition of Right, as the second; to the Bill of Rights and the final triumph of the people in the firm establishment of the Habeas Corpus Act, as the third.

Ít is a curious and instructive fact that the progress of English liberty is exactly indicated by the progress of the civil over the military power. Starting under the Norman conquerors with an absolute and licentious military government, the utter overthrow of Saxon liberty, and the complete confiscation of estates, parcelled out to the followers of the chief, and again to sub-dependants, we pass on to the great conflict between the barons and the king, re

sulting in the conquest of Magna Charta, the reduction of the military and the extension of the civil power, and again, to that greater achievement of civil liberty, the Petition of Right, when, in point of fact, the military power ceased to be an element of the Constitution of England. All this, we repeat, is simply a history of martial law, as it was understood and enforced from the Norman Conquest, up to about the time of the wresting of the Great Charter from King John; of military law, its successor in government, as it was enforced before the Petition of Right and the Habeas Corpus enactment, to the final and complete triumph of the civil establish

ment.

Martial law, as rudely exercised by the conquerors, was absolute military government, not limited in its jurisdiction to military persons, but extended to every citizen or subject, even to the right of compelling service to those intrusted with command. It would seem, from an examination of the structure of society at that period and what was actually done, that it was the policy of the conquerors of our honest Saxon ancestors, to confer supreme power upon the military, as the easiest and shortest process of overthrowing, not only their civil institutions, but the entire eradication of their social and political habits and convictions. There were none but martial honors to be won, and no submission, short of slavery, could be received.

In the progress of events this early phase of martial law became modified, so as to confine its authority to military persons in all circumstances. Even their debts and obligations were subject to inquiry by military commissions. Every species of offence committed by any person in the army must be tried, not by a civil judicature, but by the judicature of the regiment or corps to which he might belong. It was yet made to extend to a great variety of cases not relating to the discipline of the army. Plots against the sovereign, intelligence furnished to the enemy, and numerous other kindred matters, were all considered as cases within the cognizance of military authority.

This was its phase for many centuries in England, and although shorn, as was intended, by the Great Charter, through the extension of the civil establishment, of much of its offensive and dam

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