by its own violence, and the whole lake was precipitated upon the country below, carrying terror and devastation in its course.

The Constitution of the United States confines power within its appropriate limits. The question of the day seems to be, whether its limitations and guarantees are like the sandy banks of the lake in Glover. If the barriers shall once be broken, that question may be solved by the ruin and destruction of the liberties of the people.

If one usurpation of power is tolerated, —

66

""T will be recorded for a precedent;

And many an error by the same example

Will rush into the State; it cannot be."

We have most ample warning to beware how we sanction the exercise of unlawful power.*

The President on the 24th of September, two days after the proclamation of emancipation, issued another proclamation, in which it was ordered,

1st. "That during the existing insurrection, and as a necessary measure for suppressing the same, all rebels

* The evidence that the "great proclamation" is destined to the ignominous fate of accomplishing nothing, and of being construed into a humbug, accumulates from day to day. Hon. Richard H. Dana, Jr., District Attorney of the United States for the district of Massachusetts, is reported to have said, in a recent speech at Providence, R. I.,——

"Do you object to the proclamation of emancipation? Do you know what it is? Republicans, cabinet ministers, differ as to its meaning and probable effect. That an army may free the slaves of the enemy, is a settled rule of war. The rebels must expect this. Their conduct has made it necessary and right to do so. But if any man fears or hopes that the proclamation did, as matter of law, by its own force, alter the legal status of one slave in America, on the first of January last, in my private judgment, he builds his fears or hopes on the sand. It is a military act, and not a decree of a legislator. It has no legal effect, by its own force, on the status of the slave. What is done by the strong arm is done, what the arm of force does not do, is not done. That is the nature of a military act. Its moral effect, as a threat or promise to the master or slave, the probabilities of its advancing an actual emancipation, I do not speak of. I speak of its legal effect on the legal status of a slave who is not freed in fact by the act of superior force. I say this, because I do not wish to see mistakes entertained, to see a good cause put on a false principle."

and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts martial or military commission."

2d. "That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority, or by the sentence of any court-martial or military commission."

This purports, as you perceive in the first clause, to subject to martial law, and to trial and punishment by courts martial or military commissions, the persons mentioned in it, throughout the United States. It has been regarded, therefore, as a proclamation of martial law over the whole of the United States, and was probably so intended. But before proceeding to inquire and consider by what authority the President assumes the right to proclaim martial law over the whole Union, it may not be amiss to say, that the document construed according to its terms, and according to what was probably designed to be its practical application, is not of that character.

It is of the nature of martial law, that wherever it exists it is the governing power, and suspends the municipal law. It is the law of the district or place where it is in operation. It is not military law, merely, for the government of the armed force, according to some statute or military regulation. But it is the law of force, which the commander applies according to his will, subject to the limitation that he is not to depart from the proper object and purpose of it, that is, military rule for the time being. It is not necessary to its existence that the municipal law should be subverted entirely, but so far as municipal law furnishes the rule of action, it is by the permission of the governing military force.

A proclamation that the whole United States should be governed by the law of force, would be preposterous, or, if made effective, would subvert the Government.

Besides, it is not in the nature of martial law to exist where there are no military forces in camp or in the field. Mr. Justice Woodbury, in Luther v. Borden, 7 Howard, 83, admitted that a commander might extend certain rights of war, not only over his camp, but its environs and the near field of his military operations. But no further nor wider. And he said, " But in civil strife they are not to extend beyond the place where the insurrection exists. Nor to portions of the State remote from the scene of military operations, nor after the resistance is over, nor to persons not connected with it;" adding, "Nor, even within the scene, can they extend to the person or property of citizens, against whom no probable cause exists which may justify it."

It is the nature of martial law to be in force territorially; not as the rule by which a few persons scattered through the community are to be governed, without any possible knowledge on their part whether they are living under martial law, liable to arbitrary arrest and trial by a military commission; or whether they are under the municipal law with its guarantees of liberty and personal safety.

But this proclamation is an order that certain persons, or classes of persons, designated only by their supposed acts, are subject to martial law. And in relation to some of these classes, the persons to be subjected to arrest and military trial cannot have any knowledge that the sword is suspended over them, by a single hair, until it falls with fatal effect upon them.

Persons guilty of any disloyal practice or of affording aid and comfort to the rebels are thus subject to arbitrary seizure. If it was to operate only on those actually guilty of such offences, it might be said that their own consciences would inform them of their liability. But we know that, if attempted to be enforced, this cannot be its operation. It is to operate on any person who may be accused of a disloyal practice, or of giving aid and comfort.

Two days after this proclamation was issued, the Secretary of War promulgated a military order for the appointment of Provost Marshals, who are to arrest, on the warrant of the Judge Advocate, among others, all disloyal persons subject to arrest under the orders of the War Department, and to perform such other duties as may be enjoined upon

them by the War Department. If the War Department pleases to call any person disloyal, he may be arrested. If, under general orders of the War Department, the Judge Advocate pleases to regard any person as disloyal, his warrant consigns that person to the dungeon of some fort, without the benefit of habeas corpus or trial, or inquiry, until it shall please somebody to release him.

No person is subject to martial law under this part of the proclamation, until the order of the War Department or the sign-manual of a Judge Advocate to a warrant designates him as a subject of it. Up to that time he is in the peace of God, and the State. The warrant of the Judge Advocate changes the governing power over him. He is to be tried, if ever tried, at the pleasure of somebody, under martial law, for acts done, or perhaps for words uttered, while he was under the protection of municipal law, against which he had committed no offence.

Now suppose the President, leaving out of the proclamation the words "shall be subject to martial law," had ordered that all persons who shall be arrested upon the warrant of a Judge Advocate, shall be tried by a military tribunal, and punished at its discretion, can you imagine a more despotic and arbitrary governing power than would exist under such an order, if it were carried into execution? And yet such is precisely the nature and character of this part of the proclamation, for the words "shall be subject to martial law," do not operate in any manner to change its character or vary its effect.

But concede, for the sake of the inquiry into its validity, that this is a proclamation constituting martial law, as the governing power, not merely over any individual who may be so unfortunate as to incur the suspicion of a Judge Advocate, but over some territory. That territory is the whole United States. There is nothing to limit it. And then comes the inquiry, by what authority does the President assume to establish martial law over entire States, where there is and has been no rebellion; within the limits of which there has been no war nor danger of war, nor any danger of resistance to the due and full execution of the laws of the United States ?

There is nothing in the language of the Constitution to show the existence of such a power. Suppose the President as Commander-in-chief possesses what is called the war power; still the question remains, is it within the authority of a Commander-in-chief to extend martial law over the whole country. There is nothing in the history of the States after the Revolution and before the adoption of the Constitution to show that it existed there, and has been thence transmitted. There is nothing in the authority of the colonial governors to show that it is derived by inheritance from them, even, if the succession had been somewhat more regular than history shows it to have been. It is not to be found existing in some authority in Great Britain, before the Revolution, under such circumstances as may serve to give a construction to the war powers here, under which it is claimed. We are entirely at fault in any attempt to trace its existence there in such shape that it may serve as an argument for its

existence here.

By the British Constitution, the King is generalissimo of the forces. There are some authorities to show that the King may, in case of necessity, proclaim martial law. It is not quite clear, perhaps, whether this is by virtue of his prerogative, or whether it is a mere act of power, not strictly within the prerogative. Blackstone says,

"That in the exertion of those prerogatives which the laws give him, the King is irresistible and absolute, according to the forms of the Constitution. And yet, if the consequence of that exertion be manifestly to the grievance or the dishonor of the kingdom, the Parliament will call his advisers to a just and severe account. For prerogative consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent; if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner." 1 Bl. Comm. 251.

In a debate in the House of Commons, in 1801, Lord Castlereagh said:

"I perfectly understand that the prerogative of the Crown authorizes those acting under its authority to exercise martial law. I maintain that it is a constitutional mode for the executive government to exercise martial law in the first instance, and to come to Parliament