"There were sometimes bitter reflections cast upon the proceedings of
the major-generals by the lawyers and country-gentlemen, who accused
them to have done many things oppressive to the people, in interrupting
the course of the law, and _threatening such as would not submit to
their arbitrary orders with transportation beyond the seas_."[11]
At last, even Cromwell, at the height of his power, found it necessary
to abandon the policy of military governors. He authorized his
son-in-law, Mr. Claypole, to announce in Parliament, "that he had
formerly thought it necessary, in respect to the condition in which the
nation had been, that the major-generals should be intrusted with the
authority which they had exercised; but in the present state of affairs
he conceived it inconsistent with the laws of England and liberties of
the people to continue their power any longer."[12]
The conduct of at least one of our military magistrates seems to have
been a counterpart to that of these "bashaws" of Cromwell; and there is
no argument against that early military despotism which may not be urged
against any attempt to revive it in our day. Some of the acts of
Governor Stanley in North Carolina are in themselves an argument against
the whole system.
It is clear that these military magistrates are without any direct
sanction in the Constitution or in existing laws. They are not even
"major-generals," or other military officers, charged with the duty of
enforcing martial law; but they are special creations of the Secretary
of War, acting under the President, and charged with universal powers.
As governors within the limits of a State, they obviously assume the
extinction of the old State governments for which they are substituted;
and the President, in appointing them, assumes a power over these States
kindred to his acknowledged power over Territories of the Union; but, in
appointing governors for Territories, he acts in pursuance of the
Constitution and laws, by and with the advice and consent of the Senate.
That the President should assume the vacation of the State governments
is of itself no argument against the creation of military governors; for
it is simply the assumption of an unquestionable fact. But if it be true
that the State governments have ceased to exist, then the way is
prepared for the establishment of provisional governments by Congress.
In short, if a new government is to be supplied, it should be supplied
by Congress rather than by the President, and it should be according to
established law rather than according to the mere will of any
functionary, to the end that ours may be a government of laws and not of
men.
There is no argument for military governors which is not equally strong
for Congressional governments, while the latter have in their favor two
controlling considerations: first, that they proceed from the civil
rather than the military power; and, secondly, that they are created by
law. Therefore, in considering whether Congressional governments should
be constituted, I begin the discussion by assuming everything in their
favor which is already accorded to the other system. I should not do
this, if the system of military dictators were not now recognized, so
that the question is sharply presented, which of the two to choose. Even
if provisional governments by Congress are not constitutional, it does
not follow that military governments, without the sanction of Congress,
can be constitutional. But, on the other hand, I cannot doubt, that, if
military governments are constitutional, then, surely, the provisional
governments by Congress must be so also. In truth, there can be no
opening for military governments which is not also an opening for
Congressional governments, with this great advantage for the latter,
that they are in harmony with our institutions, which favor the civil
rather than the military power.
In thus declaring an unhesitating preference for Congressional
governments, I am obviously sustained by reason. But there is positive
authority on this identical question. I refer to the recorded opinion of
Chancellor Kent, as follows:--
"Though the Constitution vests the executive power in the President, and
declares him Commander-in-Chief of the army and navy of the United
States, _these powers must necessarily be subordinate to the legislative
power in Congress_. It would appear to me to be the policy or true
construction of this simple and general grant of power to the President,
not to suffer it to interfere with those specific powers of Congress
which are more safely deposited in the legislative department, and that
_the powers thus assumed by the President do not belong to him, but to
Congress_."[13]
Such is the weighty testimony of this illustrious master with regard to
the assumption of power by the President, in 1847, over the Mexican
ports in our possession. It will be found in the latest edition of his
"Commentaries" published during the author's life. Of course, it is
equally applicable to the recent assumptions within our own territory.
His judgment is clear in favor of Congressional governments.
Of course, in ordinary times, and under ordinary circumstances, neither
system of government would be valid. A State, in the full enjoyment of
its rights, would spurn a military governor or a Congressional governor.
It would insist that its governor should be neither military nor
Congressional, but such as its own people chose to elect; and nobody
would question this right. The President does not think of sending a
military governor to New York; nor does Congress think of establishing a
provisional government in that State. It is only with regard to the
Rebel States that this question arises. The occasion, then, for the
exercise of this extraordinary power is found in the Rebellion. Without
the Rebellion, there would be no talk of any governor, whether military
or Congressional.