Keowee courier. [volume] (Pickens Court House, S.C.) 1849-current, 1867-06-29
PlCKENS COURT HOUSE, s. c. SATURDAY, JUNE %. 1867

his own choice rather than by the lawful in.
cumbcnts. The Act gives him no right to
resort to such agency, but does give him tho
right to have 6" sufficient military force" to
enable 'him "to perform his duties and en-
torcc ilis authority within tho district to
which y; is assigned"
In t'tR ssppression Of ,nsurroction and ri.
OF, the military command ,ris wholly indie.
pendentof the civil authority So, too, in
the trial and punishment of criminals aud Of
tenders, ne may supcrccde the civil iurisdc-
ton. Ills power is to be exercised in those
special emergencies, and the means arc put in
to his hands by which it is to be exercised
that Is to say, GO sufficient military force to
enable such officer to perform lis duties and
ent"rco his authority" and military tribunals
OF his own appointment to try and punish of.
Tenders. These are strictly military powers
to be executed by military authority, not nv
the civil authority, or by civil officers appoint.
ed by him to perform ordinary civil duties.
1T these emergencies do not happcn. if civ.
il order is preserved, and criminals arc duly
prosecuted by the regular criminal Courts, the
military power though present must remain
passive Its 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 be.
comes again passive, but on guard and watch
full.
his, in my Judgment, is the whole scopc
OF the military power conferred by this Act,
| and in arriving at this construction of the
Act, have not found it necessary to resort
| to the strict construction which is allowable
What has been said indicates my opinion
as to any supposed power of the military com.
man nler to change or modify the laws in force.
The military commander is made conScrva.
tor of the peace, not legislator. His duties
arc military duties, executive duties, not leg
islativc duties. lie has no authority to enact
or declare new codc of laws for the people
within his district under any idea that lie can
make better code than the people have made
for themselves. The public policy is not com
mttcd to his discretion. The Congress which
passed this Act undertook in certain grave
particulars. to change these laws, and these
changes being made, the Congress saw no fur
a tie ohsr s1 ws il hui ta ofsas1 sa1tGnt
subject to this emphatic declaration, that as to
these laws and such future changes as might
DC cSpcdicnt, the question of cxpcdicncy and
the power to alter, amend or abolish, modify,
control, or superccdc the same" Where,
then. does military commander find his au-
thority " to abolish. modify, control, or su-
pcrscdc' any one of these laws /?
The enumeration of tue extraordinary pow
crs exercised by the military commanders in
some of the districts would extend this opin-
ion to an unreasonable length. \ few instan-
ccs must suffice
In one Of these districts the governor of
State has been dcposcd under threat Of mil
itary force, ais;! another person, called a gov.
crnoz, has been appointed by tho military
commander, in eases of necessity, to transfer
the jurisdiction of a criminal court to mil
ita,y tribunal. That being the specific au-
thorlty over the criminal courts given by the
Act, no other authority over them can be law
fully exercised by the military commander
But, in this instance, the Judge has, by mill
tary order, been elected from his office, anda
privatsS'tizen has been appointed judge in
his plssc, BY military authority, and is now
in tho exercise of criminal jurisdiction cover
all crimes, misdemcanors. and Offences" COM
mitted within the territorial jurisdiction of the
court. This military appointment is certain
ly not authorized to try any ono for offence as
| Il member Of military tribunal, and he has
just as little authority to try and punish any
offender ps a judge of a criminal court of the
State. 49,
It happens that this private citizen, thus
| placed on tho bench is to sit as the sole Judge
in criminal court, whose Jurisdiction extends
to cascsinvolying the life of leaccuscd. If
no has any judicial power in any case, he has
the same power to take cognizance of capital
cases, and to sentence tho accused to death
and order his execution. strange spectacle
where the judge and the crimipal. may very
well E'change paccs;" for II, tho criminal
has unlawfully taken life, so too docs the Judge
This is the inevitable result. for the only tri
bnnal, tho only judges if they can be called
judges, which military commander can con-
stitutc and appoint under this Act, to inaict
tho death penalty is a.military court COM
posed, Of a board, and called in the Act
" military commission"
| sec no relief for the condemned against
the sentence of tho agent of the military com
mauder. 1t is not the sort of court whose
sentence Of death must be first approved by the
commander and finally by. the President; for
that is allowed only where the sentence is
pronounced by n military commission -
Nor rsis3it q sentence pronounced by tho right
fnl court Of the State, but bya court, and by
a judge, not clothed with authority under the
aws,ofs the State, but constituted by tire mil
tary authority. AS tho representative of this
military authority, this Act fofbids intcrfer-
cncc "uhdcr color Of State authority with
the exogSse of his functions.
l. Is fY,,.. .x-k1 ~