24 / CHRONICLESnon the grounds that, as Roger Sherman said, “It is unnecessary.nThe power of Congress does not extend to the Press,”nthe fact is that they were well aware that rights exist by thenpermission of power.n”The framers,” wrote Leonard Levy in his classic work onnthe Fifth Amendment, “were . . . skeptical of the values ofnTarchment barriers’ against ‘overbearing majorities,’ asnMadison put it, knowing that even an absolute constitutionalnprohibition, as. experience had proved, dissolved in thencase of an emergency or public alarm.”nBut if the Founders were aware of the realities of power,nso were the people. They did not trust their government notnto override their liberhes; they wanted guarantees. Anti-nFederalists, the party of skepticism, perceived that thenpurpose of the Philadelphia lawyers was to create a centralizedngovernment, and they feared (correctly, as historynproves) that such a government would seek to extend itsntentacles as far as any of its predecessors.nEven the Reverend Samuel Stillman, defending thenConstitution during the ratification debate, had to admitnthe reality of such fears—even as he sought to allay them.n”Who are the Congress?” he asked. “They are ourselves,nthe men of our choice.” But he admitted that a Constitutionnalone was no sure safeguard against tyranny. Nothingncould guard the people’s liberties for them “unless theynwatch their own liberties. Nothing written in paper can donthis.” For at least two generations Americans were sure theyncould, in fact, do that. But they underestimated the naturenof crises—and of revolution.nBefore the Civil War it was taken for granted that statesncould secede from the Union. Even Lincoln, a consummatenpolitical leader and superb lawyer, did not openlynargue against that widespread position. In his First Inaugural,nwidely hailed as conciliatory, Lincoln said there wouldnbe “no bloodshed or violence” and “no use of force” againstnthe seceding states; even the mails would be abandoned ifnthey were not wanted. But taxes were another matter.nLincoln would collect “the duties and imposts, but beyondnwhat would be necessary for these objects, there will be noninvasion, no use of force against or among the peoplenanywhere.” In other words, the South could secede, but thentariffs that protected New England would continue to bencollected by the North. Then he sent a supply ship to FortnSumter, where “duties and imposts” were collected fornWashington, and the war was on.nIn its course, Lincoln suspended the ancient right ofnhabeas corpus for spies, prisoners of war, confederatensympathizers, and “anyone who interfered with the military.”nThis left the military free to create commissions andnto try civilians. This resulted, in the view of Allan Nevins,nin the arrests of numerous persons “in circumstancesnimperiling the basic liberties long held sacred in Anglo-nAmerican tradition and law. . . . Arbitrary arrests, accordingnto the New York journal of Commerce became sonnumerous that a mere list would fill eighteen columns ofnthe paper. . . . Figures range from 38,000 as a top ton13,535, which may be too low.” Three hundred newspapersnwere suppressed. This is not to deny Lincoln’s staturenas a great man, sitting atop a keg of dynamite during ancritical period of internal war. But it is an instance of anpower struggle overriding rules.nnnWars, however, have a way of preceding revolution. Thatnlesson first emerged in frightening form in the 1780’s innFrance, when wars bankrupted the treasury of the richestnnation in Europe. Faced with the collapse of Frenchngovernmental credit, Louis XVI was told by his advisors henhad to raise taxes. And, since the air was heavy with thenneed to “reform,” that forced the King to summon thenEstates General—to deal only with taxes. The rest isnwell-known history.nFirst, the Commons demanded national elections and annend to the three tiers of representation. Those electionsnheld, with radicals elected, the General Assembly demandedna new constitution, a reduction of the executive authoritynof the king, elimination of tax exemptions for the nobilitynand the clergy, and other reforms. When these werenaccomplished, and the king reduced to a constitutionalnmonarch, the radicals (aided by demonstrators and a pressnthat combined radical politics with pornography) increasedntheir demands: new elections were held and more radicalsnwere elected. These proceeded to confiscate the propertiesnof the Church and the nobility and to launch trials ofnpersons accused of “crimes against the people.” Retroactivenin nature, formless and frightening, these rendered thencourts of France obsolete and launched the wave of terrornwhich engulfed the king, the queen, thousands of peers,nnobles, citizens, priests, nuns, children, and oldsters alike.nIt is most important to note that all these horrors were notnunleashed by mobs in the street but by officials seated innelected offices in a duly elected legislature. It is alsonnoteworthy that these officials expanded their powers as thenexecutive (in the French instance, Louis XVI) retreatednfrom confrontation. Eventually, when the king had completelyncollapsed, he was put on trial, found guilty (ofnhaving been the king), and executed.nThese instances are not at all remote from the Americannexperience. The unexpected murder of Lincoln left thenoffice of the presidency (the American equivalent of thenking) occupied by a man of lesser political skill and flawednreputation. Suddenly the legislature was convulsed by anfaction (the Radical Republicans) that saw an openingntoward supreme power.nThose who may consider this hyperbole should remembernthe climate. The American nation had just concluded anmassive war, during which sensitivities were blunted towardndeath, suffering, misery—and legalities. This was madenclear by the treatment of those accused of being part of thenconspiracy that martyred the President.nThe seven men and one woman arrested and chargednwith complicity in Lincoln’s murder were held, incommunicado,nin the Washington Arsenal Penitentiary, in chains,nin dark cells, their heads encased in leather hoods. Tried innthe penitentiary grounds without being informed of theirnright to counsel, the men were handcuffed to a metal barnand wore hoods much of the time. Mrs. Surrat, a boardinghousenkeeper, was guilty mainly of having some of the mennas boarders. The defendants were finally allowed counselnonly after public protests, but the counselors were forced tonwrite their briefs as the trial proceeded and without beingnable to consult their clients in private. The judges—threenmajor generals, four brigadiers, and other officers—had nonlegal background whatever. Reverdy Johnson, attempting ton