Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-06

lie Until he De uFbL iuulcteu Dg RtdhA
| jury, except In such casee as may ar Sc la
| the government and regulation Of the
| land f,rces.U The exception in similar
Amendments proposed by New York,
| Nsrviand and Virginia, was in the same
or equivalent terms. The amendments
proposed by the states were considered
by the first congress, and such as were
approved in substance were put la form
and proposed by that body to the states.
Among those thus proposed, ana subse-
ourutIy ratified, WAS that when uo9
sands as the fifth amendment Of the con-
stitutinn. We cannot doubt that this
amendment was intended to have the
same force and effect as ihe amendment
proposed by the states. We cannot agree
10 a construction which will impose ON
the exception in the fifth amendment
sense other than that obviously indicated
hy action OF the state Conventions
We think, Therefore, that The power OF
congress, in ths gOverpmeut IF The land
and naval forces aud 5f the militia is not
az I'll affected by the fifth or auy other
amendment II Is not necessary TO at.
fempt any precise definition of the
boundaries OF this power. But may Il
not be said that government includes
protection aud defense as well as the
regulation of internal administration
Aud is it impossb'e e 10 i'm sgine cases in
which citizens conspiring or attempting
the destruction or great injury Of the ma.
tiaaaI forces may b. subj 0-ecr by CON
rress t. nniiittry trial ant puulsllmenrin
the lust exercise Of this undUuVt-d con-
~titri iopal power? Congress Is nut the
ageut OF the nati,,n, aud does uOt t g 81
curly Of iudl viduals against the abuse
of this, as OF every other power, depend
on the Intelligence and virtue of the
peoplr, on their zeal for public aud pri-
vate liberty, up,u OtIieial responsibility
secured by law, and upon the frvquenry
of elections, rather tbAn upon douOtfui
constructions Of legislative powers?
But We do not pat our opinion, that
eongre-s might eu,nDrize such military
commission as was he'd Ia Indiana, upon
tne po'Fel to provide for the g9verument
OF the national forces.
Congress has the power not only to
raise aud support and govern ar;aies, but
70 declare war. It has, therefore, the
pOwer to provide by law for ear ying Oh
war This power necessarily exteHGs TO
all legislation essential to the prosecution
OF war with vigor and success, except
such a. interieres with the com maud Of
the forces and the conduct Of Campaigns.
The power and duty belong 10 the presi
dent as com III lndeF ia ehis. Both these
powers are derived from the constitution,
but neither ls defnrd by that in-tru-
ment. Their extent must be determined
by their nature, by the laws of nations,
aad by the principles Of our institutions.
The power to make the necessary laws
il in congress; the power to execute III
the president. Both powers imply many
subordinate and auxiliary powers. Etch
includes all authorities esseutialto lis due
exercise. But neither can the president,
in war more than in peace, intrude upon
the proper authority of congress, nor
congress upon the proper authority OF the
president Both are servants of the
people, whose will is expressed in the
fundamental law. Congress cannot di-
rect the conduct OF cam paigus, nor can
the president, or any com msnder under
him, without the sanction OF congress,
institute tribunals for the trial and pun
ishment Of offenses, either Of soldiers or
civilians, unless in cases Of q controlling
necessity, which justifies what it COM
pels, or at least ensures acts Of indemnity
from the justice of the legislature.
We By no means assert that congress
can establish and apply the laws of war
where no war has been declared or
eXists.
Where peace exists the laws of peace
must prevail. What We do maintain Is,
that when the nation Is involved in war.
aud some portions OF the country are
Invaded, and all are exposed to invasion,
10 Is within the power Of congress to de-
ternine in what states or districts such
great and imminent public danger exists
as iustiies the authorization OF military
tribunals for the trial OF crimes aud
u1fenSes against the discipline or security
Of the army, or against the public safety.
In Indiana, for example, st the time
Of the arrest Of Miiligsn and his con
-pirGtGTs, IL is established by the papers
ia tue record, that the state was mill
fsry district, was the thearer OF military
Operations, had been actually Invaded,
aud was constantly threatened with iu-
vasiun, It appears, Also, that ppwerfu.
cret a--Ociatiou, composed of eiaEsus
and others, existed within he state. un-
der military OrgG niZ 4,inn, cOnsDiriug
gains, the draft, and plOrtin. iusurte1
zion, tbs liberation of the prisoners Of
var at various d-pnts, the Seizure OF the
state aud nstiJnsl ar5euals, armed CO.
operation. WITH ths enemy, aud war
against the uatiopal government
We cannot doubt that, in such Tins
1f public danger, congress had pnW+r,
under rhe constitution, 20 provide for TIE
rgauiEAfion Of(t military CON liSsion,
and for rial by Saiat cUm n iss.ou Of Der
Sons engaged in this conspiracy. rhe
fSct tbsC he f=iierAi courts were open
wss regarded by congress AZ q SUN lent
reasuu for not exercising The power; tut
IN tsgt could no deprive congress Of
The right To exercise it. These cuurts
might lie Open and uuiisturbed ia TIE
cution OF their fucctiOus, aud YET
VIII lily incompetent 10 aveTr threatened
danger, or to punish, with adequate
promptituGe aud certainty, the guilty
couspirstUFs,
In Iufans the judges and others Of
the cOurtni@ ere loyal tn the government
But It might have been other Wi-e. IN
times Of rebellion and civil war it may
pften happen. indeed, that Judges anu
mArsnals viii be IN active sympathy
with the reAels, and courts their mos.
efficient allies,
We have confined ourselves to the
question nf power. II was for congress
TO determine the question Of expediency.
And congress did determine i. That
body did not see fit to authorize trials by
military cumGlission ia Indiana, but by
the strongest implication prohibited
them. With that prohibition we are
satisfied, and shoUld have remained ST.
lent If ths answers to the questions certi-
fed had been puton that ground, without
denial of the existence Of power which
we believe TO be constitutional and i'm
pnrtant 10 the public ssfety-a denial
which, as We have already suggested,
seems to draw in question the power Of
congress to protect from prosecution the
members OF military commissions who
acted in obedience to their superior OH
Gers, and whose action, whether war
rsntei by law or not, was approved by
Inst upright and patriotic president under
whose administration the public Was
rescued from threatened destruction.
We have thus far said little OF martial
law, nor do We propose to say much.
What we have already said sufficiently
indicates our opinion thst there Is no
law for the government Of ths citizens,
the armies or tbs navy Of the United
States, within American jurisdiction,
which is not contained In or derived
from the constitution. And wherever
our army or navy may 60, beyond our
territorial limits, Deither can go beyond
the authority Of the president or the
legislation at congress.
There are under the constitution three
kinds Of military jurisdiction-oDe to be
NAchNAocd DblA III bEHCu dl1 AuOk4cE
to be exeTeisei in time of foreign war
without the boundaries Of the United
States. or IN time of rebellion and civil
war withiR states or districts occupied
by rebels treated as belligerents aud
third TO be exercised in time of invasion
or insurrectiOn within the limits of the
United States, or during rebellion within
the limits OF states maintaining adhesion
to the national government, when
the public danger requires its eX-
ercise. The frat of these may be
called jurisdiction under MILITARY
| LAW, and Is found in the acts Of congress
| prescribing rules and articles OF war, or
otherwise providing for the gOvernmsut
| Of The nalinnIl forces; she second may
! ha 4 stiugui-ed as MILITARY GUvEkN-
MENT, supersediDg, rs far as may be
deemed expedi Mt, the cal lsw, ana
| exercised by the military commander
under the direction OF the president,
/ With the express or implied sanction OF
/ cong css; while the third NAV ne de-
nominated MARTIAL Law PROPER, aud
! is called into action by congress, or tenn
/ porarily, when the actiOn OF congress-
| cannot be invited, and In the case of
| justifyiug or excusi0g peril, by the presi-
| kent, in times of insurrection or inva-
/ sion, or of civil or foreign war, within
1 districts or localities where or iinary law
no longer adequately secures public
| safety aud private rights.
W. think that the DOyge- ~ cono-ase