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[245] welfare, during his presence. On such grounds the existence of such courts is justified; for the establishment of a court like this provisional one, however, no legitimate authority is to be found either in the Constitution of the United States or outside of it. Inter arma silent leges is a maxim nearly two thousand years old; it means that, under the exercise of military power, the civil administration ceases.

When called upon to state any just grounds for such a measure, the invader has usually replied that he had, ex necessitate rei, the right to establish such a tribunal. Thus said the commander in chief of the United States, and Congress acquiesced—indeed, leading the way, it had urged the same plea to justify the passage of its confiscation act. The judiciary has observed the silence of acquiescence. Thus the doctrine of necessity —the rule, that, in the administration of affairs, both military and civil, the necessity of the case may and does afford ample authority and power to subvert or to suspend the provisions of the Constitution, and to exercise powers and do acts unwarranted by the grants of that instrument— has apparently become incorporated as an unwritten clause of the Constitution of the United States.

What, then, is this necessity? Its definition would require an explanation, from the persons who act under it, of the objects for which, in every instance, they act. Suffice it to say that the political wisdom of mankind has consecrated this truth as a fundamental maxim, that no man can be trusted with the exercise of power and be, at the same time, the final judge of the limits within which that power may be exercised. It has fortified this with other maxims, such as ‘Necessity is the plea of despotism’ and ‘Necessity knows no law.’ The fathers of the Constitution of the United States sought to limit every grant of power so exactly that it should observe its bounds as invariably as a planetary body does its orbit. Yet within the first hundred years of its existence all these limits have been disregarded, and the people have silently accepted the plea of necessity.

It must be manifest to everyone that there has been a fatal subversion of the Constitution of the United States. In estimating the results of the war this is one of the most deplorable, because it is self-evident that when a constitutional government once oversteps the limits fixed for the exercise of its powers, there is nothing beyond to check its further aggression, no place where it will voluntarily halt until it reaches the subjugation of all who resist the usurpation. This was the sole issue involved in the conflict of the United States government with the Confederate States; every other issue, whether pretended or real, partook of

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