The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-06-17

bus NO scrip outstanding debts Of other
ind than those specified will paid without special
authority from these headquarters. lie will deposit
the manner though they were those VI
the United Staies-" In another OF these DISTRICTS q
body Of military edicts issued in general and specia o.
ders regularly Numbered and N occasional circulars
have been promulgated which already begin 10 assume
the dimenslons Of code These military orders mouy
the existing law In The remedies for tue COLLECTION "
debts the enforcement Of judgments and DEGREES ior the
payment Of money, staying proceedings instituted pro-
hibng, In certain cases the right TO BRING sun eh)on.
ing proceedings execution for the term OF Twelve
months giving liens in certain cases. establishing
homestead exemptions declaring what shall be legal
tender sboshng IN certain cases the remedy by for
eign attachment, abotishing bal las heretofore
authorized IN cases CO contraef' eat not am ~
changing. Ia several particulars, the existing Jaws as
to the punishment OF crimes, and directing that tne
crimes referred 10 shall be punisned by imprisonment
at hard labor for term not exceeding ten years nor
less than two years. in the discretion OF the court
having jurisdiction thereof" One OF tbese general
orders being number ten Of the SERIES contains no less
than sections ebodyng the various changes
and notifications which have been reclted inc cues.
tion arises in the mind of every lawyer, what
power discretion belongs 10 the court having Juris,
of any Of these offences 10 sentence criminal
to any other or different punishment than that proVed
BY the law which vests him wnh jurisdiction The
concluding paragraph OF this order No 10 ~ ~ these
words: ANY law ordinance heretofore in force IN
North Carolina South Carolina Inconsistent with the
provisions OF this general ORDER hereby suspended
q power to suspend the laws, but 10 declare them
generally imperative and assuming full powers OF
Legislation by the iitary authority. The ground
thus forth ia military order No l. ssoed IN TINS dis
Iiot:--"ihs civil government now existing IN North
Carolina and South Carolina is PROVISIONAL only,
aad in all respects subject TO the paramount
authority Of the United States at any time
70 abolish, modify, control or snpersede the same .
Thus far provisions OF The act of Congress arr wen
reclted. What follows is 10 these worts:-Loca laws
and municipal regulations not Inconsistent with the
constitution and laws OF the United States or tue proc
nations Of the President with such regulations as are
or may be prescribed in the orders OF the commanding
general are hereby be in force; and in con-
fOrm
continue the exercise Of their proper lunctons acd
will be respected and obeyed by the inhabitants TINS
construction Of powers under the act Of Congress
places the military commander the same footing as
the Congress Of the United States II assumes that 1.-The
paramount authority the United States al any tune to
abo modify control or supersede Is vested 10 MIN
MS FULLY II is reserved 70 Congress. He deems
himself representative of that paramount authority.
He puts himself upon an equality with the aw-maklng
power OF the Union, the only paramount authcrty IA
our government SO lar, a. least Is tue enactment =,
laws concerned He places himself on higher ground
than the President, who is simply executive ohcer
He assumes directly indirectly, all the au hority oil
the State legislative, executive and Judicial, a1d IN
effect declares 81 am the Stac.n regret that ind 1t
necessary speak plainly OF this assumption OF au
thorty repeat what have heretofore said that 90
not doubt that all orders have issued under
honest belief that they we're necessary or expeden
and fully warranted by the act OF Congress There may
be evils and msch,eis in the laws when these people
made for themselves through their own legislative
bodes which require change but none OF these can oe
so ntolerabe the evils anu mischicfs which must
ensue from the OF remedy apped. One can
plainly see what Will be the inevitable confusion and
policy Of the Stale must produce. II these pi!itary
edcts allowed 10 remain even during the BRIEF time
in which this provisional military government may be
IN power tie seeds will be for such future har-
vest of litigation has never been inflicted upon any
other people. There is, in my opinion, an executive
duty W DO performed here which cannot safely be
avoided or delayed. For Notwithstanding the para
mount authority assumed by these commanders, they
are not even their proper duties IN any
sense clothed with paramount authority. They are,
least subordinate executive officers They are respon.
sble the President for the proper execution OF their
hvS
are his selected agents His duty is not all performed
by selecting such agents he deems compecnt but the
their duties faithfully and according to law 1t true
that this Of Congress only refers to the President ia
the matter Of selecting and appointing these command
and in tho matter OF their powers and duties under
law the act speaks in terms directly to them bus
this does relieve them from their responsibility to
the President, does It relieve him from the consti
tutiona obligation imposed upon him to see that all he
laws be faithfully executed II scarcely DO
sary cite authority for plain proposition as this
Nevertheless as have q recent decision completely
in point, may well refer TO it, Upon the motion
made by the State OF Mississippi before the Supreme
file bill against the President OF the Uniied states TO
epion him against executing the very acts Of Congress
now under the opinion OF the court upon
dsmissng that motion, and 1t seems have been unan-
imous, delivered by the Chef justice. make the
following quotation from the opinion: Very different
IL the duty President in the exercise OF the power
TO that the laws faithfully executed and among
those laws the acts named in the bill BY the first
Of these acts he required to assign generals 70 COM
mand in the several military districts, and 70 detail
sufficient military forcc TO enable such officers TO dis
tary &C. other duties are imposed on the several
commanding generals and their duties must necessarily
be performed the supervision Of the President
COMMANDMENT Chief The duty thus imposed on the
President is In just sense ministerial Is purely
executive and POLITICAL Certain questions have been
propounded from one OF these military districts touch
ing the construction Of the power Of the military
mander 70 constitute military tribunals for the trial OF
Soes no, term, aspace the regular criminal courts Of
the State does give the power to the military COM
mander when in his Judgment necessity arises, TO
take the administration Of the criminal Law into his
hands, and to try and punish offenders by means
of military commissions In giving construction
and AUTHORITATIVE exposition given by the Supreme
Court OF United States to the power Of Congress
provide for military tribunals for the trial of citizens
time OF peace and 10 the emphatic declaration us TO
which there vas no dissent or difference OF opinion
among the judges, that such power Is not warranted
by the constitution single extract from the opinion
Of the minority delivered by the Chief Justice will
suffice 1--WE by no means assert tina. Congress can
establish and apply The laws Of war where no war has
peace must prevail What we do maintain Is that when
nation is involved in war and some portions OF the
country are invaded, and all are exposed to INVASION
is within the power Of Congress TO determine in what
states Districts such great and imminent public dan
ger exists juses the authorization OF military tri
bunas for the trial crimes and offences against the
discipline security OF the army or against the public
safety" Limiting myself here simply 70 the construc.
ton this Of Congress and TO the question in what
way should be executed, have no hesitation IN say
ing that nothing short Of an absolute or control
raigning q citizen before military commission. per-
son charged with crime In any OF these military dis
trcts rights DO protected rights tho most sacred
and inviolabe, and among these the right Of trial By
Jury according laws OF the land When q citizen Is
arragned before military commission on . criminal
charge he longer under protection Of law,
surrounded with those safeguards which are provided
tho constitution This ac passed in time OF peace,
when all the courts, State and federal, In the unds-
turbed Of their Jurisdiction authorizes at the
discretion OF military officer the seizure, trial and
condemnation Of the citizen The accused may be SEN
fenced death, and the sentence may he executed,
without indictment, without counsel without jury,
and without judge sentence which forfeits al the
properly Of the accused requires no approval II
il affects the liberty Of the accused II requires
the approval OF the commanding general; and II
is affects his life II requires the approval
of the general and OF the President Military and execu
tive authority rule throughout in the trial, the
tcnce asd execution. NO habeas corpus from any
state court be invoked for this law declares that
Ali interference, under color Of State authority,
the exercise OF military authority under this act shall
be null and void repeat H. thai nothing short Of an
absolute necessity give any color OF authority TO
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