The southern press. [volume] (Washington [D.C.]) 1850-1852, 1850-08-09
spEECli or
Mr.. uAy1a. Of Mississippi,

Mr.. DAVIS, OF mississippi,
On the Exercise of Civil Po,oer and Authority
by Military Officers In Senate, Monaay
August 8, 1850.
The Senate having under consideration the
following resolution, submitted by Mr LASS Oh
the 9th of June:
Resolped. That the Committee on Military
Affairs be instructed TO inquire into the expedi-
ency of prohibiting by law any oihcer OF the
army from assuming or exercising withih the
limits of the United States any civil power or
authority not conferred by an act OF Congress, and
of providing an adequate punishment for such
offence.
Mr.. DAVIS, of Mississippi, said: Mr.. Presi-
dent, indicated on former occasion that
should have something to say on this resolution
when it should come up for consideration. This
resolution, which was offered by the Senator
from Michigan, (Nlr. CAss,) proposes. to submit
to the Committee on Military Affairs the inquiry
into the expediency of prohibiting by law any
officer of the army from assuming or exercising
within the limits of the United States, any civil
authority not conferred by act Of Congress, and
providing adequate punishment for such offences
do not propose to go into the merits OF this
resolution yet would wish to call the atten-
ton of the mover of it to the necessity Of max
ing it more specific, of directing the inquiry to
that which he wishes to reach. As it stands, sir,
connected with the history of events which have
recently transpired, we should be at loss to
determine whether it was proposed to censure
the Congress of the United States, from whose
delay the necessity has arisen, or the Executive
of the United States-either the last or the pre-
sent Adminstration---Ort the officers of the army.
Most probably, sir, the latter and, if the latter,
then the censure is imposed on that to which
it least Justly attaches. 1t is fact well known
to the whole country, that during the war with
Mexico we held possession of the district of San
Ia Fe, and the whole Territory of California, by
the power Of the military forces alone To what,
then, were we to refer for the preservation OF
order? Not to the courts which had just been
expelled from the country by military authority !;
not, in the case of California, to the legislation
ofCongress, for they had no power to legislate
for it; but necessarily to the military authority
which held it by conquest, and under orders Of
the Executive of the United States
The resolution as it stands directs the inquiry
to something still more remote--to that great
necessity which sometimes occurs, and drives an
officer to declare martial law-that resort of
General Jackson, when called to the defence OF
New Orleans, and without using which the city
would have fallen, probably into the hands Of
the enemy The Senator from New Hampshire
has proposed an amendment which will render
the inquiry more specific, if it be adopted by the
Senate, which points the committee to an exami-
alton into the orders given by the last and present
Administration to any officer of the United States,
comforting authority to be exercised without the
limits of the several States of the Union, and to
report by whom, and to whom, and by what
laws such orders were given These orders, or
if gentlemen please, these assumptions of au
thority, depend upon the usages of war-upon
the law of nations. They are not to be driven
from the Constitution of the United States, and
could not be provided for by the legislation of
Congress. If the committee be directed to re-
port on the general subject of the resolution, its
terms are either too broad or too narrow 1t either
restricts the Military Committee from inquiring
into those points which may require legislation,
and which are connected with the subject under
consideration, or else it opens an indeterminate
field, without comforting authority to recommend
to Congress any provisions for like cases, should
like cases occur, would be to instruct the COM
mittee to forbid the exercise of discretionary
power, without substituting any other to enable
the Executive to preserve order in territory OF
the United States, held by military occupation.
This is one of the contingencies of war. 1t
necessarily res Its from war that commanders
sometimes perform functions not ordinarily en-
trusted to military officers; it is of the ex-
treme necessities for which each case must itself
provide. AS the law now stands, each officer
assumes it under the high responsibility he feels
to prove to his country that necessity existed
which justified the assumption. do not pre-
tend to say that all which has been done de-
serves to be approved. Indeed, on the other oc-
casions have said, believe, that authority had
been assumed by officers exercising commands
in the territory of the United Suites, not COM
patible with the duties of their profession, not
required by necessity, and in violation Of the
rights Of the United States l hold that it
was the duty of the army, when this territory
came into our possession, under the orders Of
the Executive, to hold it for the United States
till Congress should provide for it and such
were the declarations and acts both of the ad-
ministrations of Mr.. Polk and General Taylor.
Both have absolutely declined to give any de-
cision upon the question of boundary consider
ing it as a subject over which the legislation of
the country could alone exercise control Twill
refer to n case before me, which fully maintains my
position upon this branch of the subject There
Is district upon the Rio Grande which lies below
the old limits of the province of New Mexico,
which was never part of it, but which in my
opinion became part of Texas by the treaty
Of San Jacinto. If this opinion be erroneous,
it was acquired by the treaty of Guadalupe Hdal-
90, in an anomalous condition. 1t was possessed
partly by our own emigrants and partly by Mex
leans, and was without government or law from
the date of the treaty of peace and limits with
the republic Of Mexico The commanding of
ficer of the division stationed Mt Santa Fe d.
rected the officer who held subordinate COM
mand over this district, and whose headquarters
were opposite to Ell Paso, to apply to it what is
called the Keamy code, the government provided
for New Mexico. These orders were referred
to the Executive through the usual chonnel of
correspondence, and have before me the all
swer:
WAR DEPARTMENT.
"Adjutant Generals Office, March 8. 1850.
VI am directed by the Secretary of War to
state, in reply, that, regarding as he does your
orders to Major Van Horne, of December 80,
lS49, as man.festy assuming to decide the ques-
ton of territorial jurisdiction ofTexas over the
places enumerated therein, and protesting to
extend code" of laws which hid not been
accepted by the people even whilst under military
= IL. L. q.