try. This he took to be the doctrine
of English Common Law, and he contended that the Constitution left this
doctrine in full force. Whatever may be said as to his view of the
Common Law doctrine, his construction of the Constitution would now be
held by every one to have been wrong. Plainly read, the Constitution
swept away the whole of that somewhat undefined doctrine of martial law
which may be found in some decisions of our Courts, and it did much more.
Every Legislature in the British Empire can, subject to the veto of the
Crown, enact whatever exceptional measures of public safety it thinks
necessary in an emergency. The Constitution restricted this legislative
power within the very narrowest limits. There is, moreover, a recognised
British practice, initiated by Wellington and Castlereagh, by which all
question as to the authority of martial law is avoided; a governor or
commander during great public peril is encouraged to consider what is
right and necessary, not what is lawful, knowing that if necessary there
will be enquiry into his conduct afterwards, but knowing also that,
unless he acts quite unconscionably, he and his agents will be protected
by an Act of Indemnity from the legal consequences of whatever they have
done in good faith. The American Constitution would seem to render any
such Act of Indemnity impossible. In a strictly legal sense, therefore,
the power which Lincoln exercised must be said to have been usurped. The
arguments by which he defended his own legality read now as good
arguments on what the law should have been, but bad arguments on what the
law was. He did not, perhaps, attach extreme importance to this legal
contention, for he declared plainly that he was ready to break the law in
minor matters rather than let the whole fabric of law go to ruin. This,
however, does not prove that he was insincere when he pleaded legal as
well as moral justification; he probably regarded the Constitution in a
manner which modern lawyers find it difficult to realise; he probably
applied in construing it a principle such as Hamilton laid down for the
construction of statutes, that it was "qualified and controlled" by the
Common Law and by considerations of "convenience" and of "reason" and of
the policy which its framers, as wise and honest men, would have followed
in present circumstances; he probably would have adapted to the occasion
Hamilton's position that "construction may be made against t