Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1865-06-23


they adopted the ffth constitutional amendment.
which declare. that no person shall be held 10
snsver for . capital or other Else infamous crime
unless on q presentment or indictment OF grand
jury, except in cases arising in the land or naval
forces, 10 the militia when IN active service 10
time of war or public danger"
This view - elaborated By reference TO the
hg CHEST legal authority aud the constitutional
questions are discussed at length.
The sixth amendmoni which our fathers
thosght so vital to individual liberty when as
sailed by govern mental prosecution. is but dead
letter totally inefficient for ils purpose. whenever
The government shall deem Is proper TO Try cit
iIen BY a military commission Against such =
doctrine the Yery instlncts OF ireensn revolt
IL has no Foundation bat 10 the principles Of uu
restaned tyrsnnic power aud passive obedience.
If il De well founded then ue indeed nation
Of slaves and not of .fresmen.
proceed nov to examine with somewhat Of
particzlsrity the grounds Oh which am iniof med
your Jurisdiction Is maintained
|. That il il an incident Of the var power.
That power, whatever be lie eItens, is eEciu
siyey In Congress War can only be declared
by tina. body. With its origin, the President has
20 concern whatever Armies, which are neces
sary. can only be raised by the same body. Not
a soldier. without is authority, can be brought
into service by the Executive. He is as mpo-
tent to that end as private citizen.
And armies, TOO, when raised by Congressional
authority. can only be governed ana regulated by
rules prescribed by the same authority. The
Executive possesses no power over the soldier. eI-
cept such as Congress may, by legislation. con
fer upon him. IL then, il was true that the ere
alton of military commission. like the present,
- incidental 70 the war power it must be author
lied by the department 20 which that power be-
longs, and not by the Executive, 10 whom no
portion belongs Aud ii il be said TO De involved
in the power "to make rules for the government
and regulation OF the land and naval forces, the
resul. is the same Ii must be done by Con-
gress, TO whom that power also exclusively be
longs, and not By the Executive Has Congress
then, under either power, authorized such a CON
mission this TO try such cases as these! Ii is
confidently asserted that il has no.: IL it has let
the statute be produced. IL 10 certainly not one
by that OF the 10Th of April 1906, establishing
articles for the govern ment OF the armies Of the
United States" No military courts are there
mentioned or provided Tor but courts martisls and
courts of inquiry And their mode OF appointment
and organization and of proceeding, and the au-
shorty vested in them. are also prescribed. Mill
tary commissions are not only not authorized,
but are not even alluded TO. Aud. consequently
the parties. who ever these may De, who, under
that act, be tried by courts martiss or courts
CT inquiry, are not made subject to trial by a mil
tary commission.
Nor is such tribunal mentioned in any prior
statute, or in any subsequent one, until those
of the 18th OF July, 62, and the Sd OF March.
90 In the.ffth section OF the first. the records
of Military Commission are to be returned
for revision TO the Judge Advocate General,
whose appointment II also provides for. But
how such Commissions are To be constituted,
what powers they are 10 have, how their pro-
ceedings are TO be continued. or what cases they
are 10 try, are not provided Tor. In the thirty
eighth section of the second, they are mentioned
"a competent TO try persons lurking or acting
Rs spies" The same absence in the particulars
stated in respect to the first true of this
And Ga regards this act Of 1863, this reflection
forcibly presents itself. II Military Commits
sons can be created. aud from their very nature
have jurisdiction 20 try all military offenses the
ground on which your jurisdiction is said ia par;
10 rest-why was it necessary to give them the
power, by express words, to try persons ''lurk
ing or acting as spiesl" The military character
of such an offense could not have been doubted
What other reason. then, can be suggested for
comforting the power by express language thar
that without IL would not be possessed Be-
fore these statutes were passed % a Commis
/ sion. called Military Commission. had beer
issued by the Executive to Messrs. Davis Holt
aud Campbell. to examine into certain military
claims against the Western Department, anc
Congress, by It's resolution Of the llth of March
1862 No. lo) provided for the payment OF il.
awards. Against n Commission of that charac-
ter no objection can be made, Ii is but auxil-
larry to the auditing sf demands upon the Gov
ment. and in no way intsrferes with the constitu
tional right of the citizen. But until this re
belion a Military Commission like the present
organized in loyal State or Territory, where
the courts are open. and their proceedings unob-
structed, clothed with the jurisdiction attempted
TO be conferred on you-a jurisdiction involving
not only .he liberty. but the lives OF the parties
on trial-it is confidently stated is not to be
found sanctioned the most remotely recog-
nzed or even alluded TO by any writer on mill
! tary law 10 England or the United States, or in
any legislation of either country. 1t has its orr
gin IN the rebellion, and, like the dangerous her
esq Of secession. out of which that sprung moth
ing is more certain, in nv opinion, than tha..
however pure the motives OF its origin il will be
an almost equally dangerous heresy to consttu-
tonal liberty, and the rebellion ended perish
with the other then and forever But to proceed.
Such Commissions were authorized by Lieuten
ant General Scott in his Mexican campaign
When he obtained possession of the city of Mex,
leo. be. on the l7th of September. 1S47, repub.
lished. with additions, his order OF the 10th OF
February preceding. declaring martial law. By
this order he authorized the trial OF certain of
lenses by Military Commissions, regulated their
proceedings, aud limited the puuishments they
might infict. From their Jurisdiction, however,
be accepts cases CLEARLY cognizabe by Court
Martial" and in words limits the cases to be tried
TO such are Il quote mot provided for in
the act Of Congress establishing rules aud arti-
Giles for the government of the armies OF the
United States OF the 10th of April, 1906
The second clause OF the order mentions,
among other ofenses to be so tried, "assassina
ton. murder, poisoning" and in the fourth (cor-
rectly. as submit, with all respect for a con
trary opinion), he states that The rules and ar
ticles OF war" do not provide for the punishment
OF any one OF tho designated ofenses "even
when com mitted by individuals of the army upon
the persons or property of other individuals OF
the same except in she very strictest case OF the
ninth Of the articles" The authority for even
this restricted Commission Scott. not more emi.
nent as soldier than civilian placed entirely upon
the ground that the named offenses, if committed
in foreign country by American troops. could
not DE punished under any law of the United
States then in force The Constitution of the
United States aud the rules aud articles of war
he said. and said correctly, provided no court
for their trial or punishment, mo matter BY
whom or on whom" committed SCOTS Auto.
biography, 392
And he further tells Us that even this order.
20 limited and CO called for by the greatest pub
lie necessity, when handed TO the then Secretary
Of War Mr.. Marcy "for his approval" "a
stsrtle a, the title martial law order was the
only comment he then, or ever made on the sub
ject, and that IL was soon silently returned as
TOO explosive for safe handling" "A little later
be adds the Attorney General Mr.. Cushng)