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The Old Guard: A Monthly Journal, Devoted to the Principles of 1776 and 1787 by Charles Chauncey Burr

The Old Guard: A Monthly Journal, Devoted to the Principles of 1776 and 1787
Charles Chauncey Burr

"The War Power"

“A new phrase has lately appeared in this country, very much as Satan’s face first appeared in Paradise.—It is, ‘the war power’ as something above the Constitution, which is declared to be ‘the supreme law of the land.’ ...

The Constitution of New York declares that ‘No authority shall, on any pretense whatever, be exercised over the people of this State, but such as shall be derived from and granted by them.’ The Constitution of New Jersey says: ‘The military shall be in strict subordination to the civil power.’ The Constitution of Pennsylvania says: ‘The military shall, in all cases and at all times, be in strict subordination to the civil power.’ The Constitution of every State in the Union is similar. The idea of a war power that is above the powers of ordinary legislation—that is able to revoke or suspend existing constitutional law—is not only foreign to the genius of our government, but is positively denied by express constitutional enactment.

What is now by ignorant or designing people called the war power, or military law, is simply the absence of all law, and rests upon the same moral basis, as what is called Lynch law, or mob law. They depend upon the same arbitrary usurpation of power, in opposition to Constitution and statute. It depends solely upon the will or caprice of the party by whom it is proclaimed and enforced. Until Mr. Lincoln's election, no man imagined that it was ever to be put in force outside of the military camp; nor was it supposed that it would ever be used even there, in violation of the express guarantees of the Constitution, It is well known that Washington, although the land was full of traitors to our revolutionary cause, totally ignored the idea of such a war power as Lincoln claims to wield.”

Charles Chauncey Burr, The Old Guard: A Monthly Journal, Devoted to the Principles of 1776 and 1787, Volume 1, No 7 (New York: C. Chauncey Burr & Company, 1863), 163.


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