Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-06-18

Jurisdiction. If civil order is preserved,
and criminals are duly prosecuted by the
regular Criminal Courts, themilitary pow
er, though present, must be passivet Its
proper function is to preserve the peace, to
act promptly when the peace is broken and
restore order. When that object is done
fand civil authority may again safely re-
sumo its function, the military power be-
comes passive, but on guard and watchful.
This is the scope of the military power con-
ferred by this act. The military COM
nander is made CONSERVATION of the peace,
not a legislator; his duties are military ex
ecutive duties, not legislative duties. Con-
gress reserved to itself the power to altar,
amend or abolish such laws as it,had not
interfered with. Where then doesia mili-
tary commander find his authority to abol-
ish, modify, control or supercede any one
OF the laws ? g.. -, .-,-s..1,,so
The Attorney General proceeds to speei-
fy sonle Of the, acts of the military com
lnandersr which, in his opinion. have ex-
ceeded the military, power under the law.
In one District the, Judge of one of the
criminal courts has been summarily dealt
with. The act of Congress gives authority,
in cases of necessity, to the military COM
manders to transfer the jurisdiction OF a
criminal court to military tribunal. No
authority can lawfully be exercised over
them. No appointee OF a military, COM
mander in place of aJudge superseded can
lawfully exercise authority either as aciVil
magistrate or member of military tribun-
al The commanding General of the Dis
trict of North Carolina and South Car
olina construes the. act of Congress as
placing him upon the same footings as re-
CARDS power and authority, as Congress it
self. He assumes that the paramount au-
thority of the United States to abolish,
modify, control or supersede, is vested in
him as fully, as it is reserved to Congress.
He assumes directly or Indirectly the au-
thority of the State, legislative, executive
and Judicial, and in effect declares Il am
| the State" 80 -21'AI 'li'',. 2'-I ~.
In the Attorney Generals opinion, there
are executive duties to perform which cam
not safely be avoided or delayed there
Commanders, Notwithstanding their as
sumptions, are not in any sense clothed
with paramount authority. They treat as
subordinates executive officers, who are
responsible for the proper execution of
their duties, and upon them rests the final
responsibility and duty remains with him
to see that they execute their duties faith
fully and according to law. ~, -.
In support of this opinion he cites the
opinion of the Supreme Court. delivered by
the Chief Justice in discussing the State of
Mississippi when asking leave to file bill
against the President.
He then proceeded to reply to certain
questions propounded from one of the
military districts, touching the power OF
military commanders TO constitute military
tribunals for the trial of officers. Whilst
the act does not abolish the regular Grim
inal courts of the State, it gives power to a
military commander, upon his Judgment,
when the necessity arises, to take the ad-
m;nistration of criminal law into his own
hands, and try and punish offenders by
means of military commissions. He iex-
presses grave doubts of the constitutional
ity of this provision of the law in time OF
peace, and cites, in support of his position,
the opinion of the minority of the Supreme
Court, delivered by Chief Justice Chase.
He says nothing short of an absolute ne
cessity can give any color of authority to a
military commander to call into exercise
such power. 1t is a power the exercise
of which may involve him, and every one
concerned, in the gravest responsibility
The occasion for its exercise should be re-
ported at once to the Executive for such
instructions as may be deemed necessary
and proper 'e t'@,o taE'. III na
The Attorney General is clearly of the
opinion that Military Commissions can take
cogAiza1ce of no offrnse that has not hap
pened after the law took effect, and that
they have no jurisdiction to try and pun
ish for acts not made crimes or offenses by
Federal or State law. There is no legisla-
tive power given under this Military bill
to establish new criminal CODE. As TO
crimes or offenses against the laws OF the
United States, the military authority. c an
take no cogniZance of them, nor in any
way interfere with equal administration of
justice by the appropriate court. The At
tOrney General supplements this opinion
with a synopsis from his former opinion,
giving the classes disfranchised under the
Military bill. o siJ1-a,. -# s. tEst ff