Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-23

too, in the triil and punishment Of Grim
inals and offenders, he may superceds
the civil Jurisdiction. His power is t.
be exercised III these special emergencies
and the means are put into his hands by
which 1t Is to be exercised, that is to say
"a sufficient military force to enable
such officer ia perform his duties and
enforce his authority and military tri-
bunals Of his own appointment to Try
and punish offenders. These are strictly
military powers, TO be executed by mill.
tary authority, not by the civil authority
4 or by civil officers appointed by him 60
/ perform ordinary civil duties.
If these EN- ergencies do not happen, il
civil order Is preserved, and criminals are
duly prosecuted by the regular criminal
courts, the military power though pres
ent must remain passive. It's proper
function is to preserve the peace, to act
promptly when the peace is broken, and
restore order. When that is done and
| the civil authority may again safely
resume its functions, the military power
becomes again passive, bat on guard and
watchful.
This, In my Judgment is the whole
scope of the military power conferred by
] this act, and in arriving at this constTue-
! tiOniOf the act, l have not found it ne
cessary to resort to the strict constrUc-
| ton which is allowable.
hrHE CoMMANl1ERs ABE NOT LEGIsLAroRs, NOR
CAS THEY iJsURP THE FUScrIoNs OF con-
/ GREsS.
What has been said indicates my opin-
/ ion as to any supposed power of the
military commander 70 change or modify
the laws III force The military COM
mander is made a CONSERVATION of the
fN1, L. -
are military duties, executive duties, not
| legislative 6nties. He has no authority
/ 10 enact or declare q new code sof laws
for the people within Mis- district under
any idea that he can make a better code
I than the people have made for them
/ selves. The public policy is not commit
! ted to his discretion. The congress,
which passed this act, undertook 10 eer-
| tain grave particulars to change these
| laws, and these changes being made, the
congress saw ne further necessity of
| change, but were content to leave all the
other laws in full force, but subject to
| this emphatic declaration, that as to
| these laws and such future changes AZ
might be expedieRtthe question Of exps-
dieney and the power TO alter, amend or
abolish, VFas reserved for " the para
mount authority Of the United
States. at any timer 70 abolish,
modify, control, or supersede the
same.o Where, then, does a mill
! tary commander find his authority . to
abolish, modify, control, OF supersede y
any Of these laws?
AN ESUNEBATI0N OF THE AoNsTRoUs UsUPA-
TIoSs OF sICKLEs, POPE, SHERIDAN AND ORD.
The enumeration of the extraordinary
powers exercised by the military com:
| manders in some of the districts would
extend this opinion to an unreasonable
| length. A few instances must suffice,
In oneOf these districts the governor
of a state has been deposed under a
threat Of military force, and another per-
son, called g. governor, has been appoint
| ed by the military commander to till his
place. This presenting the strange
| spectacle of an official entrusted with
| the chiell power 70 execute the laws 0f
| the state whose authority is not reeOg-
/ nized by the laws he is called upon to
4 eKeeuts,
| In the same distiot the Judge Of one
/ of the criminal courts of the state has
/ been summarily dealt with. The act Of
congress does give authority to the mili-
/ tary com ander in cases Of necessity, to
| transfer the jurisdiction of a criminal
court to a military tribunal. That being
| the specific authority over the criminal
4 courts given by the act, no other author
| ity over them can be lawfully exercised
| by the military commander. But in this
I instance the judge has, by military
order, beer elected from his Office, and a
private citizen has been appointed
I Judge in his place, by military Authority,
and is now in the exercise of criminal
/ jurisdiction Tower all crimes, misde-
/ ineanors and otfenses" committed within
/ the territorial jurisdiction of the court.
I This military appOintee is certainly not
authorized to try any one tor any Offense
as a member of a military tribunal, and
/ he has Just as little authority to try and
punish any offender as judge of a
| criminal court OF the state.
1t happens that the private citizen,
/ thus placed ON the bench, IS the sole
| judgeiIl criminal court whose jurisdic.
| tion extends to cases Involving the lie
of the accused. If he has any judicial
power in any case, he has the same
power to take cogniZaRce of capital cases,
| and to sentence the accused TO death and
order his execution. y strange spectacle
| where the judge and criminal may very
well " change places" ;" for if the crimi-
nal has 1nlawfully 6ST-len life, 50; toe,
| does the judge. is the inevitable
result, gcr tie nl tribunal, the only
judges. l. they can be called Judges,
J " bans s;55litary commander can con-
scfiuas, S appoint under this act, to
PinIrtsss1kR fh~Sh penalty, is q military
court composed of board, and called in
| the act military commission"
| / see no relief for the condemned
| against the sentence Of this agent of the
! military commander. Ii is not the sort
! Of court whose sentence of death must
| be Arst approved by the commander and
finally -ly the PRESIDENT for that is
tHs SsntSge y p,G y
Nor HT is chanFtsnes pFonoupoed bv the
righ s6sl 20 of the state, but by court,
and by a Judge, not clothed with au-
| thority under the laws of the state, but
constituted by the military authority.
As the representative Of this militar<
authority, this act f0FSids interferE VI
"under color of state authority TUV
| the exercise OF his functions. N2i
In another one of these districts a mill
/ itsFy pr,ier commands the governor OF
| the state to forbid the Feasssm bling OF
| the legislature, and thus suspends the
| proper legislative power OF the state. In
| the same district an order has been issued
O. to relieve the treasurer of the state
1 from the duties, bonds, books, papers,
etc, appertaining to his Office" aud to
put an assistant qusrtermaster of
| United States gQl4nteeIS ia PLACE Of
| the removed treasurer the duties OF
which quartermaster-treSsur are thus
sum med up: He is to make to the head
Quarters ofthe district "the same reports
and returns required from the treasurer,
and a monthly statement of receipts spd
| EXPENDITURES he will pay all warrants
I for salaries which may be, or become
due, and iegitii4s ats expenditures for the
| support of the penitentiary, state asylum,
and support of the proYisis aal state goys
| ernment; but no scrip or warrants for
outstanding debts of othe.' kind than
| these specified will be paid without spe-
cial authority from these headquarters.
! He will deposit funds in the same man
nel: as though they were those of the
| United States"
In another of these districts body of
military ediets, issued ~ general ana
! special orders regularly numbered, and
| ia occasional circulars, have been pro-
\ mllgated, which already begin to as
sume the dimensions OF code. These
military orders modify the existing law
! III the Teul6ulSo AOI TIC CNAANNtAbA VI
debts, the enforcement of judgments and
DEGREES for the payment Of IHlney, gtsy-
! ing proceedings instituted, prohibiting
| in certain cases, the right to bring suit,
enforcing proceedings on execation for
| the term Of twelve months, giving new
liens in certain eases, establishing home
stead exemptions, declaring what shall
| be a legal tender, abolfshing in certain
cases the remedy by foreign attachment,
abolishing bail " as heretofore author
| iaed u in cases - e0gtrdetli, but not in
"other cases, known as actions e9 de-
! lictO,n and changing, in several particu-
lars, the existing laws as to the punish
| rnent of crimes, and directing that the
| crimes referred to shall be punished by
| imprisonment at hard labor for term
not exceeding ten years nor less than
| two years, in the discretion OF the court
lhsving jurisdiction thereof" One of
these general orders, being number ten
/ Of the series, contains no less than seven
teen sections, embodying the various
charges and notifications which have
! been reeited.
The question at once arises in the mind
Of every lawyer, what power or disere-
| ton belongs to the court hsving jdris-
dietion Of any of these offenses, to sem
tence criminal to any other or different
punishment than that provided by the
I a Ii. NrnNfuf ffRf rNT